DOCUMENT RESUME HE 027 438 ED 370 478 Cole, Elsa Kircher AUTHOR Selected Legal Issues Relating to Due Process and TITLE Liability in Higher Education. Council of Graduate Schools, Washington, DC. INSTITUTION Teachers Insurance and Annuity Association, New York, SPONS AGENCY Y. College Retirement Equities Fund. PUB DATE 94 NOTE 45p. Council of Graduate Schools, One Dupont Circle, N.W., AVAILABLE FROM Suite 430, Washington, DC 20036 ($7.50 members; $10 nonmembers). Non-Classroom Use (055) PUB TYPE Guides MF01/PCO2 Plus Postage. EDRS PRICE Academic Achievement; Behavior Problems; College DESCRIPTORS Admission; Colleges; College Students; Compliance (Legal); Court Litigation; *Due Process; *Higher Education; *Legal Problems; *Legal Responsibility; Personnel Policy; Policy Formation; Privacy; School Policy; Sexual Harassment; Student Evaluation; Universities ABSTRACT This booklet discusses due process for institutions of higher education and how principles of due process should shape the design of institutional prccedures for resolution of conflicts affecting students, faculty, academic programs, and research. The booklet defines and explains various area of conflict, the role cf due process, and key legal decisions that have established accepted practice or have recently changed traditional practice. Section I is an introduction. Section II defines and explains due process as an important legal concept which should be incorporated into institutional procedures for situations that may not ever be brought to court. Section III discusses the evaluation of student academic performance. Section IV covers student misconduct related and unrelated to academic performance. Section V covers difficult or troubled students. Section VI looks at admissions fraud. Section VII handles firing or discipline of faculty or other employees. Section VIII covers three special issues: scientific misconduct, sexual harassment, hate speech, and student record privacy. Section IX discusses liability for institutions and administratOn or staff. Section X is a conclusion and Section XI offers a checkli:t*' for minimizing academic legal problems. Contains 54 references. (JB) *********************************************************************** * Reproductions supplied by EDRS are the best that can be made * from the original document. 1.0 *********************************************************************** .1=:/1=111, cg% BEST COPY AVAILABLE U S DEPARTMENT OF EDUCATION EDUEATIMAt. RESOURCES INFORMATCP. PERMISSION TO REPRODUCE THIS CENTER ,ERIC; MATERIAL HAS BEEN GRANTED BY dOCurnent has been reprOduced as ecenred horn the person or orbanitalion Council of Graduate r.groallOO C Minor chiinges have been mane to mprove reproduction quality Schools PnrS ral..ew Or oeiniont stated in this On nnt nor ocsahrly TePrespr" TO THE EDUCATIONAL RESOURCES MICOOEHIIMYIKMMO~V INFORMATION CENTER (ERICk." a Nancy A. Gaffney, Editor Copyright I 994 Council of Graduate Schools, Washington, D.C. 3 SELECTED LEGAL ISSUES RELATING TO DUE PROCESS AND LIABILITY IN HIGHER EDUCATION cg COUNCIL OF GRADUATE SCHOOLS Elsa Kircher Cole. General Counsel. The University of Michigan 4 TABLE OF CONTENTS Foreword Introduction I. Due Process in the Higher Education Setting 4 I!. Evaluation of Academic Performance 5 Student Misconduct 8 IV. Unrelated to Academic Performance 8 A. At Public Institutions 8 Dismissals 8 a. 9 h. Suspensions Additional Guidelines for c. Conducting Hearings 10 Contractual Obligations d. At Private Institutions 2. 13 Related to Academic Performance B. 14 Plagiarism and Cheating 14 1. Revocation of a Degree 2. or Credits 15 Difficult or Troubled Students V. 16 VI. Fraud in Admission 17 VII. Termination or Discipline of Faculty and Other Academic Employees 18 At Contract End or Without a Contract A. 18 With Tenure or During a Contract \ Term B. 11 Academic Freedom C. VIII. Special Issues 11 Scientific Misconduct A. 11 lantssment Sexual I 13 Privacy of Student Records 14 C. 5 Hate Speech 26 D. Liability of an Institution. Administration or Staff 27 IX. 17 Liability for Defamation A. 18 Liability for Alleged Wrongful Acts B. 19 Conclusion X. Checklist to Minimize Academic Legal Problems Xl. 10 13 Bibliography XII. 6 FOREWORD This booklet was written to provide faculty members and administrators with a basis for understanding some of the legal implications involved in the resolution of conflicts affecting students, faculty. academic programs, and research. The idea for a publication CGS meetings, on on this topic grew out of a series of workshops, held over the years at selected legal issues of interest to graduate deans. Among the issues of greatest interest they related to a broad spectrum were due process a»d liability concerns, particularly as of situations including academic misconduct, termination of employees, sexual harass- lt quickly plagiarism. ment. privacy of student records, revocation of degrees, and became apparent. however, that the priociples discussed and the examples given applied With that in mind, we not just to graduate education, but to higher education in general. exists on legal offer this publicationnot as a substitute for the extensive literature that lawyershut as a aspects of higher education, or as a primer for budding academic and for increasing the effec- resource for facilitating discussion of these complex issues tiveness of the interaction between academics and university attorneys. Michigan, We want to thank Elsa Kircher Cole. General Counsel at the University of for writing this booklet for us. She has, for many years. presented this material at CGS ith workshops. and we are grateful. not just for her willingness to share her expertise s, education. us, but also for her continuing interest in graJuate We also wish to thank Phillip M. Grier. President of the National Association of College and University Attorneys (NACUA), and Marc Mills, Director of the Legal the Reference Service of that organization. for their interest, advice, and counsel during preparation of this booklet. Finally, we wish to thank TIAA-CREF for the generous support they have provided to assist in the publication of this booklet. I. INTRODUCTION Individuals charged with the administration and operation of higher education share a responsibility for ensuring that the institution is fair and equitable in its treatment of everyone involved in the enterprise. At one level, this involves defining the conditions under which academic programs are carried out, and developing policies and procedures covering everything from admission to graduation. performance standards and expecta- tions for faculty and students, and evaluation processes for assessing accomplishment at At another level, policies making clear the institution's commitment to the all levels. highest ethical and professional standards in teaching, research, and scholarship need to be articulated, and procedures established for dealing with situations where those stan- dards are not met. It is important that all policies and procedures be as clear and as unambiguous as possi- ble and, in addition, be perceived as being not only fair, but consistent with the objec- tives of higher education. This is best done by developing them in a collegial manner Obviously, such policies and related matters must be that involves all those affected. written, must be public, and must be distributed to all faculty, students, administrators. and other personnel who participate in instruction and research. At some point, challenges will arise to all of these conditions. Individuals may object to a policy itself, or to the way it has been implemented in their particular case. There may be conflicting views among those involved about what happened and how it should be interpreted. In addition, allegations of improper conduct may arise involving academ- In all of these cases, there must he processes defined ic programs or research activities. before the fact for investigation of conflicting views and/or allegations of improprieties. and a setting provided in which conflicts and disputes concerning academic issues can be resolved. While the processes we are desci ihing must he general and broad in scope. certain kinds of problems arise with greater frequency than others, and university administrators and faculty members should be prepared to deal with them. These include: Academic and Research Misconduct cheating plagiarism falsification or fabrication of data or experimental results Admissions and employment issue credentials fraud Disputes involving differences of opinions outcome of examinations, particularly, comprehensive examinations for the master's degree, and admission to candidacy and final defense of dissertation for the Ph.D. ownership of data degree requirements Specific issues dismissal from the institution revocation of degrees sexual harassment In most institutions, a multi-level system exists for dealing with such issues. For example. a student may seek assistance from his or her adviser in resolving a problem. If no satisfactory resolution is reached. tne individual may choose to bring the issue to a departmental committee. The next stage might be a college grievance committee. All of these venues can be considered as "local" and most problems are best resolved at this Certainly, an individual should explore and exhaust these options before seeking level. an institutional level of resolution. In some cases, however, the local level may be too close, with too many people direct- ly involved in the case, so that questions of fairness or conflict of interest might be If. for that reason or any other, resolution seems to be impossible at the local raised. level, the next step is for the aggrieved party to take the complaint to some central office. In many institutions, for problems involving graduate programs, the graduate school pro- vides a process for hearing and resolving cases of this kind. This is most often accom- plished through committees made up of faculty members and, usually, graduate students, from departments or administrative units other than that of the individuals involved in the complaint. There may bt. additional procedures. involving other offices in the uni- versityperhaps the Office of Academic Affairsthat deal with complaints or griev- ances on a university-wide basis, and across all degree levels. Whatever the particulars, the faculty and departmental administrators are responsible for making sure that the proper procedure, or sequence of procedures, is used. Bypassing or mishandling estab- lished procedures for resolving problems can cause many complications for all involved. ranging from unnecessarily embarrassing individuals to compromising the ability of the institution to make judgments Iv ied upon the substance of the issues. Instead, it repre- None of the foregoing discly,sion has to do with legal proceedings. sents a very general description of institutional procedures for investigating grievances or Universities, like many other disputes. conducting hearings, and arriving at judgments. organi/ations in society (particularly the prol,:ssions, e.g., medicine. law ) have insisted preser ing and protecting both their right and their responsibility to deal with their 9 7 involving professional own problems. The idea of a hearing by one's peers in matters conduct is firmly established, even though it may come under attack as, for example, in effectively recent discussions of research misconduct and the ability of universities to "police- themselves. Although we have stated that institutions have a responsibility to deal with these issues that forms the as academic rather than legal problems. there is an overriding concept bedrock of all procedures of the kind we have described: the concept of due process. In this booklet we will discuss due processwhat it means and how it affects the design of institutional procedures. We also will discuss what happens when institutional pioLedures fail to produce a satisfactory outcome, and an aggrieved party seeks legal In both of these cases, a key individual is the institution's legal counsel, and it recoui se. department chairs is particulark important for administratorsprimarily deans and entrusted with the design and implementation of policies and proceduresto establish discuss legal issues contat with this individual, preferably in a non-crisis situation, to affecting education and research. Jules B. LaPidus President Council of Graduate Schools 1994 1 0