Legal Issues in Higher Education


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Legal Issues in Higher Education

  1. 1. Legal Issues in Higher Education<br />By Barbara L. Shiels<br />Associate General Counsel<br />October 8, 2009<br />This presentation is for information purposes only and should not be construed as legal advice or counsel.<br />
  2. 2. Broad Spectrumof Legal Issues<br /><ul><li>Assuring Rights/Enforcing Obligations of Employees and Students
  3. 3. Creation and Dissemination of Information/Intellectual Property
  4. 4. Wide Array of Business Transactions</li></li></ul><li>Office of General Counsel (OGC) addresses legal issues through<br /><ul><li>Transactions Attorneys
  5. 5. Counseling Attorneys
  6. 6. Litigation Attorneys</li></li></ul><li>Transactions Attorneysreview and negotiate agreements in areas of:<br /><ul><li>Research Sponsorship
  7. 7. Technology Transfer
  8. 8. Educational Affiliations
  9. 9. Real Estate
  10. 10. Construction
  11. 11. Purchasing
  12. 12. External Sales
  13. 13. Software Licensing
  14. 14. International Programs</li></li></ul><li>Counseling Attorneysprovide advice regarding:<br /><ul><li>Labor & Employment
  15. 15. Student Affairs
  16. 16. Data Practices/Privacy
  17. 17. Equal Opportunity/Non-Discrimination
  18. 18. Research Regulation
  19. 19. Health Law
  20. 20. Copyright/Trademark
  21. 21. Campus Safety/Security</li></li></ul><li>Litigation Attorneysrepresent the University in adversarial proceedings<br /><ul><li>Court Actions
  22. 22. External Agency Proceedings
  23. 23. Arbitrations
  24. 24. Internal Grievance/Disciplinary Hearings if employee/student is represented by counsel</li></li></ul><li>EMPLOYMENT ISSUES<br />Faculty Performance/Discipline<br /><ul><li>Department heads have authority to coach/counsel faculty.
  25. 25. Authority to impose minor discipline (§ 10.22 Tenure Code) or suspension/termination (§ 14) rests with dean.
  26. 26. Post-tenure review initiated by department head and standing peer merit review committee (§ 7a).
  27. 27. Dean convenes special peer review panel of five faculty (§ 7a.3).</li></li></ul><li>EMPLOYMENT ISSUES<br />Consulting<br /><ul><li>Under consulting policy (July 2006), outside consulting/commitments cannot interfere with work duties, exceed maximum days allowed or compete with University coursework or services.
  28. 28. Use of University resources for consulting is discouraged; prior approval and payment of fee required for significant use of University resources.
  29. 29. Limitations on use of University name, trademark, stationary, facilities, etc. apply to all employees.
  30. 30. Dual appointments (e.g., University/VA) cannot exceed 120% total.</li></li></ul><li>EMPLOYMENT ISSUES<br />Conflict of Interest (COI)<br /><ul><li>Conflict of interest disclosures on REPA form typically are reviewed first by department head, then dean’s office, then COI Program.
  31. 31. All faculty/PA employees and others responsible for research must complete REPA annually even if they have no outside professional activities to report.
  32. 32. Conflict review committees (Provost and AHC) review conflict cases and develop plans to manage, reduce or eliminate the conflict.
  33. 33. Conflicts of senior officials are handled under institutional conflict of interest policy. </li></li></ul><li>EMPLOYMENT ISSUES<br />Immigration / Visa Issues<br /><ul><li>Foreign Nationals must have permanent residence or proper work authorization to be employed here.
  34. 34. Employees awaiting receipt of visa/work authorization may not work or volunteer.
  35. 35. Foreign faculty must have permanent residence for position with tenure or sign special contract.
  36. 36. New search is sometimes needed under DOL rules to sponsor foreign faculty for permanent residence.
  37. 37. Employees/units using outside immigration attorney must work through OGC for necessary approvals.</li></li></ul><li>EMPLOYMENT ISSUES<br />Internal Dispute / Conflict Resolution<br /><ul><li>All non-unionized employees may use Office for Conflict Resolution (formerly Grievance Office) for informal processes or formal grievances.
  38. 38. Employees alleging discrimination file with Equal Opportunity Office or Conflict Resolution, but not both.
  39. 39. Senate Judicial Committee hears complaints related to Tenure Code (e.g., tenure denial, tenure termination, academic freedom).
  40. 40. OGC represents unit at hearings only if employee is represented by own attorney.</li></li></ul><li>STUDENT ISSUES<br />Privacy of Student Records:<br />FERPA and DPA<br /><ul><li>All student records are private except directory information.
  41. 41. Students are entitled to access their own records (with limited exceptions).
  42. 42. Student’s written consent generally is required to release records.
  43. 43. Exceptions include health and safety emergencies.
  44. 44. Limited internal sharing of student records is permitted on “need to know” basis.</li></li></ul><li>STUDENT ISSUES<br />Liability for Student Injuries on Field Trips/Clinical Sites<br /><ul><li>University likely is responsible for negligence if trip is a required part of course.
  45. 45. Waivers of Liability may be valid for optional trips or activities.
  46. 46. University must exercise reasonable care in selecting required rotation/internship sites.
  47. 47. For learning abroad experiences, students must sign waiver and purchase special international insurance.</li></li></ul><li>STUDENT ISSUES<br />Academic Deficiencies<br /><ul><li>Students must be given notice of deficiencies and notice of possible dismissal prior to termination for academic reasons.
  48. 48. Less due process is required for academic dismissals than for discipline based on student misconduct.
  49. 49. Courts tend not to interfere with the academic decisions of universities.</li></li></ul><li>STUDENT ISSUES<br />Behavioral Violations<br /><ul><li>All University students are subject to student conduct code.
  50. 50. Many U of M colleges, particularly health science/professional schools, have established their own additional behavior codes.
  51. 51. Due process hearing is required before disciplining a student for behavioral violations.</li></li></ul><li>STUDENT ISSUES<br />Students with Disabilities<br /><ul><li>ADA and state law give disabled students equal opportunity to participate.
  52. 52. Student may succeed or fail.
  53. 53. Qualified student is one who is able to meet essential elements of program with or without reasonable accommodations.
  54. 54. If student requests accommodations, refer student to University Disability Services (DS).
  55. 55. Don’t grant accommodations without working through DS.</li></li></ul><li>STUDENT ISSUES<br />Internal Dispute/Conflict Resolution<br /><ul><li>Student Conflict Resolution Center is a resource for students facing conflicts with U.
  56. 56. Formal complaint mechanisms are Regents Student Conflict Resolution Policy and Equal Opportunity Office.
  57. 57. Students charged with misconduct are entitled to one due process hearing (college or U level) and one U-wide appeal.
  58. 58. OGC represents unit at hearings only if student is represented by own attorney.</li></li></ul><li>PRACTICE TIPS<br /><ul><li>Know your unit/college and relevant institutional policies and follow them.
  59. 59. Do not be careless or too casual in your written communications, especially email.
  60. 60. Follow up on improprieties, suspicions of misconduct.
  61. 61. Hold employees accountable for misconduct/supervisors accountable for lax supervision.</li></li></ul><li>PRACTICE TIPS<br /><ul><li>Utilize University resources to help you do your job (examples)
  62. 62. Human Resources (
  63. 63. Employee Assistance (
  64. 64. Office of the General Counsel (
  65. 65. International Student & Scholar Services (
  66. 66. Department of Audits (
  67. 67. University Police (</li></li></ul><li>PRACTICE TIPS<br /><ul><li>Utilize University resources to help you do your job (more examples)
  68. 68. Disability Services (
  69. 69. Office of Equal Opportunity and Affirmative Action (
  70. 70. Office for Student Conduct and Academic Integrity (
  71. 71. Provost Committee on Mental Health (
  72. 72. Vice Provost for Student Affairs (</li></li></ul><li>PRACTICE TIPS<br /><ul><li>When to Contact the OGC
  73. 73. Served with a Summons and Complaint
  74. 74. Served with a Subpoena
  75. 75. Contacted by adverse attorney
  76. 76. Entering into unique contract
  77. 77. Making critical employment decision
  78. 78. Have policy-making or interpretation issue
  79. 79. Have information access issues
  80. 80. Unsure if need legal assistance
  81. 81. Would like training session from attorneys</li>