Transcript Legal Issues in 20 Minutes - Middle Tennessee State University

New Faculty Orientation
September 7, 2012
Heidi Zimmerman
University Counsel
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Our client is MTSU - we represent the legal
interests of the institution.
We assist the administration and you, in
your professional capacity.
If you have questions for the OUC, please
first contact your chair or dean.
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Be consistent
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Be fair
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Follow policy
http://www.mtsu.edu/policies/
A to Z Link under “P”
Ask questions (as far in advance as
possible)
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Regulates access to and disclosure of
“student education records.”
Very broad definition – any record, in any
form, directly related to a student and
maintained by MTSU.
Records are confidential and may not be
released to a third party without a
student’s written consent.
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Don’t discuss or share with parents.
Partners in Education program
Don’t discuss records with anyone who
does not have a legitimate educational
interest or need to know.
Violations could result in loss or limitation
of Title IV funding.
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Info/Best Practices on Registrar’s website.
http://www.mtsu.edu/records/ferpa/ferpa.php
http://www.mtsu.edu/records/docs/FERPAFAQ.pdf
http://www.mtsu.edu/records/docs/Best_Pract
ices.pdf
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In contrast to FERPA, state records are open
to Tennessee citizens for inspection or
copying.
Concerns records made and maintained in
the course and scope of business.
Includes employment records.
FERPA (federal) trumps Open Records law
(state).
You don’t have authority to bind MTSU.
May result in personal liability.
Purchases: contract routing process.
Visit Contract Office website for further
information.
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MTSU Policy I:01:25 Ethics and Code of Conduct
TBR Policy 1:02:03:10 Conflict of Interest
MTSU policy sets out
- Professional Values
- Employment Responsibilities
- Conflict of Interest
- Professional Development
- Integrity of Information
- Reporting Fraud, Waste or Abuse of
University Resources
University resources are state property to be
used only within the scope of employment,
for personal gain.
Avoid conflicts of interest or even the
appearance of impropriety.
Any outside professional employment or
business activity:
- Must not interfere with assigned duties
- Must not be a conflict of interest or compete
with MTSU’s programs
- Must not be represented as connected to
MTSU
Notify dept. head of activities; will determine if
there is conflict or interference with duties.
TITLE IX
SEXUAL HARASSMENT
SEXUAL VIOLENCE
Title IX of the Educational Amendments of
1972 (20 USC Sec 1681, et. seq.) and its
implementing regulations (34 CFR Part 106)
prohibit discrimination on the basis of sex in
education programs or activities operated by
recipients of Federal financial assistance.
No person…shall, on the basis of sex, be
excluded from participation in, be denied the
benefits of, or be subjected to discrimination
under any educational program or activity
receiving Federal financial assistance.
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TBR Policy 2:02:10:01 Sex Discrimination and
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TBR Guideline P-080 Discrimination &
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Sexual Harassment
Harassment – Complaint & Investigation
Process
MTSU Policy I:01:10 Equal Opportunity,
Affirmative Action and Nondiscrimination
MTSU Policy I:01:22 Discrimination and
Harassment
There are other forms of discrimination and
harassment which are prohibited and which
apply to employees as well as students:
race, color, religion, creed, ethnic or
national origin, sex, sexual orientation/
gender identity, disability, age, status as a
covered veteran, genetic information
Incidents of these must also be reported.
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Sexual harassment is a form of sex
discrimination prohibited by Title IX.
Sexual harassment is unwelcome conduct of a
sexual nature including
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sexual advances,
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requests for sexual favors, and
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other verbal, nonverbal or physical conduct
of a sexual nature.
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Quid pro quo – work or educational benefits in return for sexual
favors;
Suggestive or inappropriate communications, emails, notes, letters,
or other written materials displaying objects or pictures which are
sexual in nature;
Sexual innuendoes, comments, and remarks about a person’s
clothing, body, or activities;
Humor and jokes about sex that denigrate men or women;
Sexual propositions, invitations, or pressure for sexual activity;
Use in the classroom of sexual jokes, stories, remarks, or images
that are in no way or only marginally relevant to the subject matter
of the class;
Implied or overt sexual threats;
Suggestive or obscene gestures;
Patting, pinching, and other inappropriate touching.
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Not every act that might be offensive is
harassing.
Could be found to be unprofessional.
Harassment does not include verbal
expressions or written material that is relevant
and appropriately related to course subject
matter or curriculum.
Sexual harassment of a student creates a
hostile environment if the conduct is sufficiently
serious that it denies or limits a student’s
ability to participate in or benefit from the
institution’s programs.
This is usually a number of events, but a single
incident of sexual harassment, such as rape,
can create a hostile environment.
Physical sexual acts perpetrated against a
person’s will or where a person is incapable of
giving consent due to the victim’s use of drugs
or alcohol.
Sexual violence includes rape, sexual assault,
sexual battery and sexual coercion.
Examples:
 Date rape
 Engaging in sexual contact after the victim
has said “No.”
 Sexual intercourse or sexual contact when the
person is drunk or under the influence of
drugs
Can be committed against a girlfriend or
spouse
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“Sexual battery” – unlawful sexual contact with a victim
- by force or coercion; or
- accomplished without consent and the accused
knows or has reason to know the victim did not
consent; or
- the accused knows or has reason to know the
victim is physically helpless; or
- the sexual contact is accomplished by fraud
“Sexual contact” includes the intentional touching of the
victim’s, the accused’s, or any other person’s intimate
parts, or the intentional touching of the clothing
covering the immediate area of…intimate parts for
sexual arousal or gratification
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Nearly 20% of female students in college will
be victims of attempted or actual sexual
assault, as will 6% of undergraduate men.
In 2009, there were nearly 3,300 forcible sex
offenses.
Victims of sexual assault are more likely to
suffer academically and from depression,
post-traumatic stress disorder, to abuse
alcohol and drugs, and to contemplate
suicide.
 Educate
 Train
 Prevent
 Provide
Services
 Provide Remedies
Touches all aspects of an institution’s
education program and activities:
◦ Academic
◦ Extracurricular
◦ Athletic
◦ Programs or activities on or off campus.
If an institution knows or reasonably should
have known about sexual harassment that
creates a hostile environment, Title IX requires
it to:
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Take immediate action to eliminate the
harassment;
Prevent its recurrence;
Address its effects.
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Adversely affects the health, safety, welfare
and educational opportunities of students
Regulatory consequences:
◦ Office of Civil Rights investigations
◦ Department of Justice lawsuits
◦ Loss of Title IV Federal funding
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Individual Liability
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MUST IMMEDIATELY REPORT
Doesn’t matter if the student hasn’t
complained.
Doesn’t matter if complaint is verbal or
written, “formal” or “informal.”
Doesn’t matter if information comes to you
secondhand.
Doesn’t matter if the student asks you not to
take action.
Doesn’t matter if the student doesn’t identify
the conduct as “harassment.”
Title IX Coordinator
Carol Clark
[email protected] ; 898-5133
Monitors and oversees Title IX implementation.
Title IX Deputy Coordinators
Athletics – students and employees
Diane Turnham, 898-2938
[email protected]
Faculty, staff and visitors
Barbara Patton, 898-2185
[email protected]
Students
Laura Sosh-Lightsy, 898-2750
[email protected]
Investigations must be promptly undertaken,
equitable, impartial and thorough.
Must be completed within stated timeframe.
Meet with both Complainant and Respondent.
Allow both to offer names of witnesses and
evidence.
Institutions have an independent obligation to
investigate and take action regardless of the
existence of a concurrent criminal investigation
or prosecution.
May minimally delay investigation, but
Complainant must be notified and any needed
interim steps must be taken.
Complainants must be told of the right to file a
criminal complaint.
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Retaliation – at any stage – is strictly
prohibited.
Burden to Complainant must be minimized.
Complainant must be told of options to avoid
contact with the respondent.
Implementation of “No Contact” orders
The President will make a determination
concerning whether the policy has been violated
and what response is appropriate.
Both parties have the right to appeal the
President’s decision and will be notified in
writing of the outcome and their appeal rights.
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Providing security escorts
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Ensuring parties don’t have the same class
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Assigning to different residence halls
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Providing counseling services
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Providing medical services
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Providing academic support services such as
tutoring.
Arranging for the Complainant to retake or
withdraw from a course without penalty.
Arranging for the Complainant to do
independent study or online study to
complete a course.
Preventive education programs
Training
Campus climate that encourages reporting
Development and distribution of sexual
violence materials
Educate campus community on:
• What constitutes sexual harassment
• How and where to report
• What to expect after making a report
Investigate reports promptly
Take appropriate action against those who
violate the policy against sexual harassment
and/or retaliation
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Take interim and permanent steps to stop
harassing conduct and remedy its effects
Prevent the recurrence of harassment
Minimize the burden to the Complainant’s
educational program
Provide resources and services to
Complainants
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Not prohibited but strongly discouraged.
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Inherent inequality of power.
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Undue favoritism or perception of such,
abuse of power, compromised judgment or
impaired objectivity.
Conflict of interest if supervises or evaluates.
Purpose – to ensure that all individuals have
equal access to the benefits of educational
programs and activity.
Individuals with disabilities may require
reasonable accommodation in order to
provide this.
Disabled Student Services (DSS) Office
http://www.mtsu.edu/dssemail/Faculty_Resour
ces.php
DSS determines if a student is disabled, if
he/she needs accommodation, and if so, what
the reasonable accommodation will be.
Reasonable accommodations will be required
unless it can be shown that making such
modifications would fundamentally alter the
nature of the course or exercise.
Don’t have to waive courses or other academic
requirements if it can be demonstrated that
these are essential to the program of study.
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Immune from suit for negligent acts within
the course and scope of employment.
If sued, would be represented by Attorney
General’s Office, and would not be personally
liable for any damages or costs.
Claims Commission, Division of Claims
NO coverage if act was:
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Unlawful
Grossly negligent
Outside scope and course of employment
Willful, intentional, malicious
Performed for personal gain
The instructor has the primary responsibility
for maintenance of academic integrity and
controlling classroom behavior, and can order
the temporary removal or exclusion from the
classroom of any student engaged in disruptive
conduct or conduct that violates the general
MTSU rules and regulations for each class
session during which the conduct occurs.
Extended or permanent exclusion from the
classroom, beyond the session in which the
conduct occurred, or further disciplinary action
can be effected only through appropriate
procedures of the institution. If an instructor
wishes to remove a student from the classroom
for a longer period of time or permanently,
he/she must refer the student to the Office of
Judicial Affairs and Mediation Services.
Disruptive behavior:
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Obstructs or disrupts the learning
environment; e.g., offensive language,
harassment of students and professors,
repeated outbursts that disrupt the flow of
instruction or prevent concentration on the
subject taught, failure to cooperate in
maintaining classroom decorum, etc.;
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Continued use of any electronic or other
noise or light emitting device which disturbs
others (e.g., disturbing noises from beepers,
cell phones, palm pilots, laptop computers,
games, etc.);
Text messaging
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Balance the responsibility to maintain
classroom decorum with the right of students
to express their disagreement with points of
view of others.
If the debate or discourse proceeds with
some degree of civility and allows the subject
matter for the day to proceed, such
expressions should not be characterized as
disruptive. Exercise professional judgment in
determining when conduct becomes
disruptive such that the student may be
excluded from the classroom.
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Include in syllabus behavior that is expected
and behavior that may result in a student
being removed from class.
Set the example. Be respectful of students
and their right to voice dissenting or
opposing viewpoints.
Address the misconduct/disruption
immediately. Ask the student to alter his/her
behavior. Tell him/her that he/she will be
removed if he/she does not.
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If the conduct threatens the safety of others,
contact Public Safety at 2424.
If conduct continues, you may direct the
student to leave the classroom. If the student
refuses, you may want to call Public Safety.
Document the incident as soon as possible.
Include as much detail as possible.
Send documentation to department chair.
If conduct is severe or persists, consider filing
a disciplinary complaint.
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Health and safety exception to privacy
constraints.
Share only with those with “legitimate
educational interest.”
If is a Title IX issue, contact a Title IX
coordinator.
Review the information at
http://www.mtsu.edu/judaff/disruptive.shtml
and
http://www.mtsu.edu/judaff/referrals.shtml ,
and complete the form online at:
http://www.mtsu.edu/judaff/documents/Beha
vioral_Referral_Form.pdf .
Heidi Zimmerman, University Counsel
[email protected]
Jeff Farrar, Assistant University Counsel
[email protected]
898-2025
116 Cope Administration Bldg.