Higher Education Roundtable · admission to high school seniors in top 10% of their class • After...
Transcript of Higher Education Roundtable · admission to high school seniors in top 10% of their class • After...
Higher Education Roundtable
June 1, 2011
Litigation UpdateHosted by
Hobart and William Smith Colleges
Presented by Julia Green Sewruk, Esq.
&Theresa A. Conroy, Esq.
Defamation
•
Website created a list of “100 Most Dangerous Schools”
based
on an undisclosed algorithm using data reported pursuant to
Clery
Act
Claimed that the schools on the list “have the most dangerous
reputations for crime in the United States”
School rankings shifted up and down seemingly at random
Website included following comments on “Safety Page”: Hobart
& William Smith Colleges (HWS) “is a very dangerous place to be
enrolled at [sic]”
•
Website assured readers that information was up‐to‐date,
objective, and unbiased
•
Attorneys tried to work through website host, but host would
not disclose owner/content manager
•
Submitted complaint through website contact screen•
Response from website including posting our rebuttal on HWS
Safety Page
Defamation
Practical Considerations for Defamation
•
Regularly comb the internet for references to your institution•
Defamation is ultimately very difficult to prove, but it is
worthwhile to be proactive and aggressive at the outset•
Probably most effective to discredit the website or publication
and use affirmative public relations to contradict defamatory
remarks
Race in Admissions
•
University of Texas (UT) experienced low numbers of
matriculated minority students
•
State of Texas adopted a Top Ten Percent Law, guaranteeing
admission to high school seniors in top 10% of their class
•
After U.S. Supreme Court decision in Grutter
v. Bollinger, UT
conducted two studies to determine if a critical mass of
minorities were enrolling; prepared a report on the
institutional benefits of diversity
Study “expressed concern that UT appeared ‘largely closed to
nonwhite applicants’
and did not ‘provide a welcoming
supportive environment’
for minority students”
Stated goal was to “produce graduates who are capable of
fulfilling the future leadership needs of Texas”
Concluded that UT had not met critical mass needed to obtain full
educational benefits of diversity
Race in Admissions
•
After applying Top Ten Percent Law, about 20% of spots
remained for admission to freshman class
•
UT adopted admissions policy with two tier system:
Academic Index
Personal Achievement Index: considered race as one factor among many,
none of which were given numerical weight
•
Court held that it was permissible to seek “critical mass”:
“defined by reference to the educational benefits that diversity
is designed to produce”
•
Even though facially neutral, Top Ten Percent Law troubled the
Court; it had also dramatically increased enrollment of minority
students. Thus, the TTP law might speed elimination of
necessity of using race as a factor to achieve critical mass
•
Court found that, overall, decision to consider race in
admissions was deliberate and studied, therefore in good faith
Fisher, et al. v. University of Texas at Austin, 631 F.3d 213 (5th Cir. Jan. 18, 2011)
Practical Considerations for Race in Admissions
•
Measures must be narrowly tailored to the interest at stake
“[A] university admissions program is narrowly tailored
only if it allows for individualized consideration of
applicants of all races”
•
Race or ethnicity can be considered as a plus factor in a highly individualized analysis of each student’s potential contribution to diversity at the institution, which may derive from
factors unrelated to race or
ethnicity
Practical Considerations for Race in Admissions
•
Quotas for minority students are not acceptable•
All race‐conscious measures must have a “logical
end point”•
Must be able to demonstrate a well‐supported and
institution‐specific determination that achieving diversity is a compelling interest; mission statement
and institutional mores should reflect a true commitment to achieving diversity
•
Must also make a serious and good faith effort to consider using alternate, ethnicity‐neutral factors that could achieve the same diversity objectives
•
Institutional goals need not be compromised•
These restrictions are applicable to public and
private institutions
Practical Considerations for Race in Admissions
•
Geography•
Socioeconomic status•
Age •
Religion •
Parental educational
attainment •
First in family to attend
college•
Household income•
Citizenship
•
Special talents•
English as second language/
proficiency in foreign
languages•
Graduation from a particular
high school•
Overcoming educational
obstacles or other
disadvantages•
Academic interests
Alternative Diversity Factors
U.S. Department of Education, Office for Civil Rights, Achieving
Diversity: Race‐Neutral
Alternatives in American Education, Washington, D.C. (2004).
Equity in Athletics/Title IX Compliance
•
Quinnipiac University (QU) proposed to cut its women’s varsity
volleyball team and planned to add varsity cheerleading
•
Court held that:
QU’s
competitive cheerleading team did not qualify as varsity sport for
purposes of Title IX
Acceptable that QU required all women cross‐country runners to
participate in indoor/outdoor track, but QU impermissibly counted
women runners who did not truly participate (red‐shirted or injured
during indoor/outdoor seasons)
“Roster management”
(above‐average roster targets for women’s team
and below‐average roster targets for men’s team) was ok
•
However, 3.62% disparity in percentage of women given
genuine athletic participation opportunities and percentage of
women enrolled violated Title IX because the shortage was 38
women, sufficient to sustain an independent varsity team QU
did not offer
Courts have recognized a substantial proportionality safe harbor
of 2%
Biediger, et al. v. Quinnipiac University, 728 F. Supp. 2d 62 (D. Conn. July 21, 2010)
Practical Considerations for Equity in Athletics/ Title IX Compliance
•
Three different tests may be used to determine whether university
satisfies obligation to “effectively accommodate the interests and
abilities of members of both sexes,”
the first of which is provision of
athletic participation opportunities proportionate to enrollment
•
Two‐part test to determine whether school is providing substantially
proportionate athletic participation opportunities
Athletic participation opportunity only counted if it affords a genuine
opportunity to participate in an NCAA‐
or National Association of
Intercollegiate Athletics‐recognized sport, meaning that experience is of a
quality similar to experience of other varsity athletes• Federal government in Biediger: “‘look behind [the] numbers’
and
examine the quality of opportunities being offered.”
Compare percentage of athletic participation opportunities provided to
women with percentage of women enrolled• If there is a disparity consider whether shortage is sufficient to sustain
an independent varsity team not currently offered
Student Entitlement to Reasonable Accommodation•
Masters of Social Work student with multiple sclerosis who used a
wheelchair failed to complete agency externship as required by
curriculum
•
Plaintiff argued that her proposed modification of working from home
under remote supervision of agency and participating as a social
worker at groups unrelated to agency (AA meetings) was reasonable
accommodation
•
Court deferred to school’s “genuine academic decision”
Plaintiff offered only her own opinion that she was a qualified individual
and that her proposed modification would satisfy the academic program
•
Court concluded that student’s proposed modification was not
reasonable given that it was a fundamental alteration to the program
Purpose of program was to observe and engage with the agency’s staff
and clients
Klene
v. The Trustees of Indiana University, 2011 U.S. App. LEXIS 6024 (7th Cir. March 23, 2011)
Practical Considerations for Reasonable Accommodation •
Standard for reasonable accommodation:
With reasonable accommodation, individual could perform the
essential functions of the job
In student context, the issue is whether school reasonably
accommodated the disability, and if so, whether the student was
otherwise qualified to be a student
•
A "qualified individual with a disability" under the ADA or
Section 504, is one who:
with or without reasonable modifications to rules, policies, or
practices, the removal of architectural, communication, or
transportation barriers, or the provision or auxiliary aids and
services, meets the essential eligibility requirements for …
participation in programs or activities provided by a public entity.
42 U.S.C. §
12131(2) (emphasis supplied).
Melendez v. DeVry
Corp., 2005 U.S. Dist. LEXIS 31384 (E.D.N.Y. 2005)
Practical Considerations for Reasonable Accommodation
•
Carefully consider whether requested accommodation would
result in a “fundamental alteration to the program”
and be
prepared to articulate that “fundamental alteration”
•
Document decision and rely on grounds that reflect “genuine
academic decision”
Work-related Stress as a Basis for Workers’ Compensation Benefits•
Plaintiff was terminated three months after he stepped into
role as Chief of University Police for Alfred State College
•
Filed for workers’
compensation benefits, claiming that, in days
immediately prior to termination, he suffered “recurrence of
[PTSD], [irritable bowel syndrome] and anxiety”
•
Filed another claim two months later on grounds that the
manner in which he was informed of termination exacerbated
pre‐existing psychological conditions
•
Appealed denial of application for benefits and full Board
review
•
Plaintiff had history of claims of stress related to work and had
exhibited signs of “delusional thinking and paranoia”
•
No evidence presented that Chief of Police position was
extraordinarily stressful or that claimed injuries caused by
conditions that existed in the work place
Work-related Stress as a Basis for Workers’ Compensation Benefits
•
Legal standard:
“A mental injury, even if job related, is not compensable if it is ‘a
direct consequence of a lawful personnel decision involving a
disciplinary action, work evaluation, job transfer, demotion, or
termination taken in good faith by the employer.’”
WCL §
2(7).
•
The Court also rejected plaintiff’s claim that the stress of the job exacerbated his preexisting mental
condition:
“Such a claim will not ‘be sustained absent a showing that the
stress experienced by the affected claimant was greater than that
which other similarly situated workers experienced in the normal
work environment.’”
Witkowich
v. SUNY Alfred State College, 80 A.D.3d 1099, 914 N.Y.S.2d 796 (3d Dept. Jan. 27, 2011)
Practical Considerations for Claims of Work- Related Stress•
Keep a good record of all inappropriate or suspect behavior,
including formal complaints and even observations•
Termination decisions should track the language of WCL
section 2(7) to show that the decision was “a direct
consequence of a lawful personnel decision involving a
disciplinary action, work evaluation, job transfer, demotion, or
termination taken in good faith by the employer”•
Be prepared to substantiate argument that stress of job at
issue is not “greater than that which other similarly situated
workers experienced in the normal work environment”
Enforceability of Charitable Pledges
•
Plaintiff Foundation sought a declaration of conditions and
restrictions to pledges that were not stated or suggested in
written and executed gift commitment and endowment
agreements
•
Court held that “As with contracts generally, when the pledge
is made in writing, unless conditions are expressed, or at least
implicit, in the agreement itself, parol
evidence may not be
used to supply them except to show conditions precedent to
the effectiveness of the agreement”
•
Defendant St. Bonaventure University also recovered $900K in
outstanding pledges toward a library expansion because it was
pledged in an unambiguous written agreement and the school
relied on it when securing additional pledges and constructing
the expansion
The Paul and Irene Bogoni
Foundation v. St. Bonaventure University, 78 A.D.3d 616, 913 N.Y.S.2d 154 (1st Dept. Nov. 30, 2010).
Practical Considerations for Charitable Pledges
•
Discuss all conditions or restrictions explicitly•
Obtain signed, explicit gift commitment or
endowment agreement for all pledges•
Document your reliance on the pledges/create
paper trail of reliance
Architect Malpractice
•
Architect and National Labor College, Inc. (NLC) entered into a
written contract for a new, two‐story multi‐purpose building
with classroom facilities, kitchen/dining facilities, conference
rooms, and retail areas•
Peer review of plans revealed problems with the design, bids
came in well over architect’s budget, plans did not comply with
government codes, and there were numerous design defects
and problems during construction, which took ten months after
projected “substantial completion”
date•
NLC sued, alleging negligence/malpractice for failure to use the
degree of skill, care, judgment or expertise required of a
professional architect, as well as breach of contract
Architect Malpractice
•
The court noted that a plaintiff cannot recover in tort unless there is a breach of a duty independent
of the contract; otherwise, economic loss rule bars tort claims and only recovery is in contract
•
The court denied architect’s motion to dismiss negligence claim even though NLC did not identify
source of duty outside of contract; it was sufficient that NLC alleged it engaged architect to perform
professional services, which generally gives rise to such a duty
National Labor College, Inc. v. The Hillier Group Architecture New Jersey, Inc., 739 F. Supp. 2d 821 (D. Md. Sept. 14, 2010)
Practical Considerations for Architect Malpractice
•
New York recognizes the same “economic loss”
rule: if there is a contract, then a party cannot sue for
negligence or malpractice unless there is a duty independent of the contract
•
“Architects who violate their professional duty can be sued by clients in both contract and tort”
Carmania
Corp., N.V. v. Hambrecht Terrell Int’l, 705 F. Supp. 936, 938‐39 n.3, 1989 U.S. Dist. LEXIS 18314
*6 n.3 (S.D.N.Y. 1989) (citation omitted)
•
However, there is only a slim likelihood of recovery in tort when the parties have a contract; must have personal injury or property damage separate from
contract
The Interplay of FERPA and FOIA
•
The Chicago Tribune submitted a FERPA request to the University of
Illinois (UI) under state FOIA statute, seeking disclosure of information
related to “Category I”
individuals, which included relatives of certain
influential individuals to determine if they were accorded any
preferential treatment.
•
UI’s Board of Trustees denied request, relying on state law FOIA
exemption prohibiting disclosure of “information specifically
prohibited from disclosure by federal or State law.”
UI relied on this FERPA provision: “No funds shall be made available under any
applicable program to any educational agency or institution which has a policy or
practice of permitting the release of education records (or personally identifiable
information contained therein…) of students without the written consent of their
parents to any individual, agency or organization.”
20 U.S.C. §
1232g(b)(1).•
Court held that this provision of FERPA did not prohibit UI from
doing
anything; does not impose any requirement on state officials
“The state has the option to choose whether or not to accept FERPA’s
conditions”•
Narrow decision, not intended to discount potential privacy interests
implicated by the FOIA request
Chicago Tribune Company v. University of Illinois, 2011 U.S. Dist. LEXIS 33440 (N.D. Ill. March 7, 2011)
Practical Considerations for FERPA and FOIA
•
Always consider whether FERPA is a basis for resisting
disclosure pursuant to FOIA •
Rely on FERPA provision that prohibits disclosure rather than
conditions receipt of funds
Legislative Update
•
New legislation introduced in New York to extend reach of FOIL to “any not‐for‐profit corporation,
foundation, alumni association, or limited liability corporation that is created, controlled or affiliated with any state agency, including the State University
of New York”•
This could make many types of information publicly
available, such as emails by professors
Regulatory Update•
OCR guidance on sexual assault investigations
April 4, 2011 Dear Colleague Letter
Available at Department of Education website > OCR
Reading Room > Documents Title IXhttp://www2.ed.gov/about/offices/list/ocr/letters/colleague‐201104.html
•
NACUA website
Legal reference service > NACUA Resource Pages > Sexual
Harassmenthttp://www.nacua.org/lrs/NACUA_Resources_Page/SexualHarassment.asp
•
Interest in this as a Fall 2011 Roundtable topic?
Thank you for attending!
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