Rights of Students
The legal rights of students in higher education extend beyond the classroom and play a critical role in shaping their academic success. Understanding these rights is not only important for students, who may be unfamiliar with them, but also for educators and administrators who play a key role in maintaining a safe and productive learning environment.
The Family Educational Rights and Privacy Act (FERPA) is a federal law that governs the privacy of student education records. It guarantees students the right to access their own education records and require institutions to obtain written permission from a student or their parents before disclosing any personal information. There are several exceptions though, including when a law enforcement agency has a valid search warrant.
The ability to freely express one’s self, including the right to speak, assemble, and engage in written expression, is protected by the First Amendment. Although these protections do not extend to minors or minors off-campus , in certain instances even those students may be protected. Speech codes that target a specific viewpoint are generally unconstitutional. Likewise, a college campus cannot normally prohibit hate speech unless it is obscene or threatening.
In addition to being protected under the First Amendment, students are also protected against discrimination on the basis of their sex, race, color, religion, national origin, age, disability, marital status, or any other protected class. This applies to both students and employees of the school, and can apply to both individual actions as well as actions by the institution itself. It is important to note that state law provides additional protections against:
Discrimination on the basis of race, color, religion, national origin, age, disability, marital status, and sex.
Discrimination on the basis of disability against anyone attending a public postsecondary institution.
For postsecondary institutions receiving federal funding, discrimination on the basis of sexual harassment and rape.
Retention of an employee intending to engage in sexual harassment.
Faculty Hiring and Employment Regulations
Faculty members at institutions of higher education are often surprised to learn that they may be covered by a broad range of employment laws that extend beyond on-campus policies. There are a number of federal, state, and sometimes local laws that are implicated in the context of faculty employment, including workplace anti-discrimination laws, laws governing protected leave, laws prohibiting retaliation, and laws granting family and medical leaves, among other examples. Importantly, faculty members can be protected under some of these laws even if the faculty member is not an "employee," as that term is commonly understood – such as tenured faculty and independent contractors, for example.
Like tenure policies, anti-discrimination laws and protections against retaliation or harassment may apply to these categories of employees, but only if the underlying employment discriminatorily or retaliatory actions are sufficiently severe to also alter the terms and conditions of employment. Faculty tenure policies, however, must also comply with the Age Discrimination in Employment Act and prohibit subjecting tenured faculty members to age-based discrimination. Thus, while tenure decisions may be based upon age-neutral criteria such as professional performance, a faculty member cannot be let go for being "too old" if that decision is based at least in part upon the faculty member’s age.
While academic freedom laws and policies often allow or even require faculty members to exercise discretion in furtherance of academic freedom and institutional autonomy, those same decisions cannot be exercised in a discriminatory manner or in retaliation against employees whose protected class status is revealed during the exercise of that faculty freedom. For example, an academic department chair might seek to deny a faculty member tenure because the faculty member has made different religious, political, or social assumptions than those held by the department chair or colleagues. Those same actions might constitute retaliation even though they are ostensibly rooted in academic freedom.
Particularly in academic settings where faculty may exercise significant discretion in their decision-making – such as by authoring, developing, and determining curricula and syllabi; conducting research; designing and conducting experiments or reporting upon emerging knowledge; and assigning, approving, or grading student work – those decisions cannot be made on a discriminatory basis. Indeed, as tempting as it may be to deny tenure, raise student reviews, or withhold grant approvals because of discriminatory or retaliatory motives, faculty members making such decisions become exposed to liability should the decision be found to be taken on that basis. Similarly, when determining to deny promotion and any future pay increases as a result of those decisions, faculty persons also may become exposed to liability should those decisions also be determined to have been taken on a discriminatory basis.
Potential liability exposure often hinges upon intent. Discrimination and retaliation are knowingly subjective and cannot be easily proven, and particularly in academic settings the question becomes whether the intent behind discretionary decisions regarding faculty employment was the result of an academic freedom goal or objective, or instead based upon a discriminatory or retaliatory motive. Educating administrators and faculty about the attendant risks of discrimination and retaliation can go a long way in avoiding those entanglements.
Safety and Liability on Campus
Colleges and universities are legally required to provide a safe environment for students, employees, and visitors. While it is practically impossible to eliminate all risks, through risk management, institutions may be able to ensure appropriate self-protection from liability. In addition to carrying insurance, there are other risk management strategies including implementing appropriate policies concerning student and employee behavior, and compliance with any statutory requirements, such as the Clery Act and Title IX. The key, then, from a legal standpoint, is for an institution to have in place appropriate risk management policies that everyone on campus understands and follows. Recently, the United States Supreme Court held in Saucier v. Katz, 121 S. Ct. 2151 (2005), that police officers who reasonably but mistakenly conclude that their conduct does not violate federal law are entitled to qualified immunity when sued for money damages by persons claiming their constitutional rights have been violated. Recently, administrators at educational institutions have been accorded similar qualified immunity when sued for money damages by persons injured by violent or criminal acts on their campuses. See e.g., Tatum v. Jones, 2005 U.S. Dist. LEXIS 6887 (D. Colo. Apr. 22, 2005). With this immunity, however, comes responsibility. In particular, the courts have required campus security to provide equal protection to all students and staff regardless of their race, gender, and creed. Faculty members and students who observe suspicious behavior or inappropriate relationships between faculty and students may be reluctant to report such conduct for fear of retaliation. It may be advisable, therefore, to educate faculty and staff regarding their responsibility to report violations to campus security or the Title IX office.
Intellectual Assets and Research Law
The convergence of commercialization of higher education with the growing importance of intellectual property (IP) rights means that colleges and universities will continue to face significant challenges in this area. The interplay of ownership and commercialization of IP generated – or used to generate – knowledge in academic institutions is fraught with complexity. Academic institutions are not simple commercial enterprises. They have a unique mission with respect to the creation and dissemination of knowledge and research. In general terms, faculty and institutional rights with respect to IP are separate and distinct. However, this separation is not always clear cut; and the unique character of academic institutions can present challenges for organizations outside of academia that are seeking to collaborate with universities and their faculty members.
Intellectual property can take many forms, including trademarks, trade secrets, patents, copyrights and design rights. Universities need to be aware of the kinds of commercialization opportunities that each type of IP may present. It is also important to understand the implications of ownership of different types of IP. For example, the ability of a university to commercially exploit IP may depend to a large extent on the ownership of the IP. Ownership is not necessarily as straightforward as it may first appear.
The ownership of IP generated by students or fellows is not always obvious. In some cases, it is clear that the student/fellow owns the IP created during the course of their studies. However, depending on the circumstances, IP generated by a student/fellow is sometimes unclear. For example, even in the case where an ongoing formal relationship between a student/fellow and a faculty member could give rise to an implied contract between a faculty member and student/fellow, the ownership of IP may not rest clearly with either the student or the faculty member. IP generated by students and fellows may be more difficult to identify for various other reasons as well.
Whenever IP is being generated during the course of relationships with students/fellows, it is very important for universities to identify the IP and to allocate appropriate rights. The allocation of rights at the outset of an arrangement can avoid complications later on. Higher education institutions should carefully examine their practices with respect to the issue of IP ownership and entitlement to traditional IP rights. Although IP ownership belongs largely to knowledge creators, the entitlement to exercise traditional IP rights in relation to IP generated by students and fellows should be carefully allocated.
Mergers, acquisitions or other forms of restructuring can give rise to additional legal questions for universities concerning the impact on IP rights. These include issues such as: (1) whether the acquiror will be entitled to enforce any IP rights of the university; (2) whether IP rights should be transferred to the acquiror; (3) whether the IP rights should be licensed to or from the acquiror; and (4) whether it is necessary to record the transfer of IP rights or license from the IP registry office to ensure that it is enforceable against creditors.
The commercialization of research provides significant economic benefits. The legal landscape around research funding, publication, and the commercialization of research, is not static. Organizations outside of academia that work with universities and their faculty members should be aware of the implications of current legal developments and emerging trends.
Data Privacy and Security Regulations
The movement in favor of greater data protection and privacy is another legal feature of this current landscape. Laws governing data protection in a university or college often overlap with student privacy considerations, as both require robust administrative measures for the appropriate collection, use, sharing and storage of student and faculty personal information. They also raise the specter of not only government enforcement actions but of a private (and possibly class action) litigation risk as well.
The most prominent data protection law is the EU General Data Protection Regulation (GDPR), which is to go into effect May 25, 2018. Although not a U.S. statute, the GDPR has the potential to affect many institutions in the United States with European operations. The GDPR is a data protection and privacy law that applies to any institution handling data of any kind on European residents or citizens – whether those individuals are in Europe or the United States. The regulation has true global reach, and could apply to a U.S. institution that maintains a website that receives visitors from Europe. It includes very detailed procedures for keeping personal information secure that are likely to translate easily into the U.S. environment . Therefore, we expect that many schools in this country will elect to implement the GDPR’s detailed data security measures for information on all of its students and staff.
The GDPR also includes explicit penalties for noncompliance of up to the higher of €20 million or 4 percent of a company’s annual revenue or global turnover (with the turn-over being all revenue from all countries, not just Europe). As such, the law can act as a draconian penalty for not investing heavily in appropriate administrative measures to protect data. In some of its more severe penalties, the GDPR can require erasure of a company’s data ("right to be forgotten") and the temporary suspension of data processing until compliance has been achieved.
The GDPR is expected to be widely adopted in the United States even if there is no direct EU legal obligation to do so. One key obstacle for compliance with the GDPR is the complete lack of consensus on what the concept of "personal data" actually includes. The GDPR’s seemingly capacious definition (which includes information like an IP address, ISP address, phone, email address or other online identifiers) has already drawn significant opposition. It is not yet clear how that opposition will play out, or whether there will be any pushback in the United States.
Legal Aspects of Remote Learning
Online education, while rapidly growing, is still a niche market. The Kaiser Family Foundation reports that about 20 percent of students enrolled in postsecondary education registered for at least one online course in the fall of 2009, compared with only 9 percent in 2002 (www.kff.org, September 2011). A closer look at these numbers reveals a lagging growth rate for community colleges that seems to suggest greater growth in online education for four-year institutions. Whatever the reason, this relatively slow growth generates substantial legal issues for colleges and universities, many of which are still relatively new to dealing with online learning. Accreditation has long been a problem for online colleges and universities. The Council for Higher Education Accreditation (CHEA) advises students that "the accreditation status of an institution influences the degree to which its degrees are accepted as a sign of quality by another institution or employers." In particular, CHEA indicates that regional accreditation is superior to national accreditation, and that "in most cases, regional accreditation has the highest academic standard of all the forms of institutional accreditation." The Department of Education (DOE) recognizes six regional accrediting associations for US colleges and universities (North Central, Middle States, Southern, Western, Northwest and New England). Each association develops standards for member schools, but there is no centralized approval process for evaluating online programs. As a result, many online colleges and universities choose to follow their region’s standards, which may not have been specifically written to take into account online program designs. While this is a reasonable approach to ensure that online program offerings maintain high quality standards, periodic updates to the standards may be slow to follow, potentially resulting in consumers being trapped with unaccredited online degrees or certificates. Cross-border issues pose additional challenges. Many traditional colleges and universities lack the statutory authorization to provide education beyond their home state, even though students may live next door in a different state or study abroad. This creates a need for schools to comply with regulations from multiple agencies, and even states when offering programs outside of their home states. Several groups are currently lobbying for federal interstate authorization of postsecondary education. In the meantime, the Southern Regional Education Board (SREB)/National Council for State Authorization Reciprocity Agreements (NC-SARA) initiative is a consortium of member schools that agreed to recognize and maintain certain standards for members’ distance education programs. Member states agree to issue authorization approvals to out-of-state schools as long as the distance education program meets standards agreed upon by the member states. Only 12 states are currently participating in the initiative, but it is noteworthy that two of California’s largest systems (the California State University and the California Community Colleges) are members. Finally, online education faces legal challenges far beyond accreditation and interstate operation. For example, online courses must comply with accessibility requirements of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Accessibility requirements apply to both learning material and delivery mechanisms. Student services provided through distance education must be as accessible as similar services provided through on-campus formats.
Funding and Related Compliance
Colleges and universities must pay close attention to federal and state financial aid regulations to ensure they are complying with applicable laws. The regulations generally cover a broad range of topics, including eligibility for financial aid programs, cost of attendance calculations, verifications of student eligibility, calculation of satisfactory academic progress and a school’s financial responsibilities regarding student loans, scholarships and employment.
Federal laws established the legal requirements for financial aid including, but not limited to: (i) the Higher Education Act, the governing legislation for federal student aid funds; (ii) Federal Family Education Loan Program (FFELP) rules; and (iii) Direct Loan (through the U.S. Department of Education) rules. Particular written guidelines, including regulations, Dear Colleague letters, policy letters and guidance’s from the U.S. Department of Education’s Office of Federal Student Aid also govern administration of federal student aid program funds, disbursing, recordkeeping and audit responsibilities, verification procedures and monitoring student eligibility.
To receive Title IV funds, a school must establish a system to monitor its compliance with all applicable requirements. Regulations provide guidance, but schools should also examine Federal Student Aid guidance, such as Training Reauthorization Act Implementation Q&A documents (TRA Implementation) and Dear Colleague Letter (DCL) guidance, since the U.S. Department of Education may interpret guidance differently than the regulations themselves. Further, the U.S. Department of Education may publish information on its website, such as the "Dear Partner" communications on student eligibility and "Dear Colleague" communications on various compliance topics affecting many areas within the higher education community. The U.S. Department of Education’s School Portal, COD System Website, FSA Schools Website, and NSLDS Website also contain valuable periodic updates concerning policies and enforcement actions that can substantiate its interpretation of regulations and guidance. In addition, the FSA Guidebooks evaluate the regulations and Dear Colleague guidance by developing a checklist of events and timelines that schools should follow. A school should refer to the regulations and other applicable resources to ensure compliance.
A school must establish eligibility for its financial aid funds in several areas including general school eligibility, student eligibility, default and cash management, and recordkeeping responsibilities. To be eligible to participate in a Title IV program, a school must be accredited or pre-accredited, among other requirements. For a school to obtain and retain financial responsibilities, it must demonstrate its financial responsibility by filing financial statements, including a statement of audited financial statements that show at least 30 percent of its assets have been invested conservatively. In addition, a school must complete an Audit and Fiscal Management Review Questionnaire and a Financial Responsibility Supplemental Information form . Finally, once a school establishes eligibility for Title IV funds, it must maintain documentation to verify that EACH participant is eligible, including copies of certain documents and a system to identify and monitor students to ensure they continue to be eligible.
To establish eligibility for Title IV funds, a student must be enrolled or accepted for enrollment (in a regular program of studies for a degree or certificate) at an eligible institution of higher education for enrollment periods that begin on or before June 30th of the following award year. Here are some eligibility requirements based on levels of educational attainment: When a school determines whether a student meets eligibility requirements, lender requirements may differ from federal requirements. For example, if a school is identified as the owner or servicer of a student loan portfolio, the school must comply with DCL GEN 03-05 (April 16, 2003). A school that determines through self-review that it has a lender relationship must comply with these requirements by February 14, 2005, or within six months of determining that further review is necessary. Included in these requirements are an annual Executive Certification, semi-annual reporting, two annual reviews for compliance with regulations, and a guarantor prohibition. Further, a university may restrict students from borrowing if the university receives any grant or service without regard to the amount, terms (including interest), or conditions of the loan (e.g., Perkins Loans and institutional loans). However, a school must still permit a student to participate in Title IV student assistance programs to receive Federal Pell Grants and Iraq and Afghanistan Service Grants.
Students must also reapply for financial aid every year because aid is not automatically renewed. A school has to support access to financial aid by providing current information about the eligibility criteria and application procedures. A school must comply with the following notification requirements: In addition, specific notification requirements are in effect for Federal Pell Grants, TEACH Grants, Federal Work-Study Program, FSEOG, Federal Perkins Loans, Iraq and Afghanistan Service Grants, Disclosure Statement, INAS, Private Scholarships, and Foreign Language and Area Studies (FLAS) Fellowships.
A school is required to monitor any interrelationship between its financial, compliance and program audits that relate to direct and indirect Title IV program operations. Four types of audit reports are required: (i) a compliance audit, (ii) a financial audit (A-133 audit), (iii) a program and compliance audit, and (iv) an information security program audit (a SAS 70 Report). The auditor must describe individual findings and corrective actions taken. Schools that are found to be noncompliant with these requirements are referred to the U.S. Department of Education and sanctions and/or program reviews can occur. Finally, schools that participate in federally funded financial assistance programs, such as Federal Perkins Loan, Graduate Plus, Direct, ESOG, and/or Work Study funds, must have in place a process for handling any financial aid disputes.
