Top Ten Legal Issues Facing Community Colleges

Transcription

1 Top Ten Legal Issues Facing Community Colleges PRESENTED BY: LESLIE ROBERT STELLMAN HODES, PESSIN & KATZ, P.A. 901 DULANEY VALLEY ROAD, SUITE 400 TOWSON, MARYLAND (410)

2 10: Intellectual Property Problems: Copyright Violations Copyright Defined: A property right in an original work of authorship (such as a literary, musical, artistic, photographic, or film work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work.

3 10: Intellectual Property Problems: Copyright Violations Common examples of copyright infringement: Reproduction: copying copyrighted materials without consent of the copyright owner. Performance: performing copyrighted work (i.e. play) without consent of the copyright owner. Distribution: distributing copyrighted materials without consent of the copyright owner. Fair use exception: Permits use of copyrighted work without consent of owner for criticism, comment, news reporting, teaching, scholarship, or research.

4 10: Intellectual Property Problems: Copyright Violations Technology, Education, and Copyright Harmonization ( TEACH ) Act of 2002 Exempts from copyright liability the transmission (including over a digital network) of a performance or display of most copyrighted works by an accredited non-profit educational institution to students officially enrolled in a course. Covers distance education as well as face to face teaching which has an online, web enhanced, transmitted or broadcast component.

5 10: Intellectual Property Problems: Copyright Violations TEACH Act Exceptions: Does not apply to works primarily produced for the digital distance education market. Institution must employ technology protection measures that reasonably prevent students from retaining the transmission beyond the class session and from redistributing it to others. Digital copies may only be made if (1) there is no digital version of the analog work; or (2) there is a digital version but it incorporates technology protection measures.

6 9: Public Information Requests All 50 states have public records laws which make most records accessible Exceptions: personnel records and attorney-client communications But even some documents withheld may be obtained by subpoena, thus staff/employees should: Consider whether it s necessary to put in writing matters which are potentially adverse to the college s interests; and Ensure clarity so as to avoid distortion by adverse parties. s usually subject to disclosure absent a specific privilege!

7 8: Open Meeting Laws All 50 states have sunshine laws requiring that Board business be conducted in formal meetings open to the public. Exceptions generally include discussions regarding: Personnel matters; Legal advice regarding pending litigation; and Acquisition of real property. Issues: Noncompliance resulting in overturned actions Solution: Legal counsel; basic layperson understanding of law Closed session information leaked to media or other interested persons Penalties: censure; suits for defamation or invasion of privacy Solution: Cultivate team atmosphere Suppression of public comment based on content or membership in class or organization Probably a violation of speaker s constitutional rights in that board meetings are designated open forums and suppression of discord not a compelling interest

8 7: Employee Relations (Collective Bargaining) Emergence of Nontraditional Faculty Unions were slow to recognize and respond to this trend, and nontraditional faculty self-organized in response. Consequently, competition among unions to represent this group has become fierce. Continued Increase of Nontraditional Faculty Large number of retirements of faculty hired when collective bargaining in community context emerged Budget constraints perpetuates continued proliferation

9 6: Student Records Family Educational Rights and Privacy Act ( FERPA ) Applies to records which: Contain information directly related to a student; and Are maintained by an educational institution or an entity acting for such an institution. Examples: Sole possession records; law enforcement records; personnel records; records created or maintained by a physician, psychiatrist, psychologist, or other recognized professional used solely in connection with the provision of treatment to the student and not disclosed to anyone other than individuals providing such treatment. Student may request to correct information that is inaccurate, misleading, or in violation of the student s rights of privacy. FERPA is a funding law; there is no private right of action.

10 5: Title IX of the Education Amendments of 1972 In order to establish a valid Title IX claim, a plaintiff must demonstrate that: (1) s/he was excluded from participation in or denied the benefits of or subjected to discrimination in an educational program; (2) the program receives federal assistance; and (3) the exclusion was on the basis of sex. Individuals cannot be held liable, but institution can if appropriate person : (1) Had actual knowledge of sufficiently severe, pervasive, and objectively offensive conduct; and (2) Acted with deliberate indifference.

11 4: Race and Diversity in Admissions and Hiring Gratz v. Bollinger (2003) Mechanical race-based admissions preference policy held unconstitutional. Grutter v. Bollinger (2003) Race-conscious admissions policy which viewed race as one factor among many held constitutional. Uncertain whether Gratz and Grutter apply to community colleges. Wygant v. Jackson (1986) Limits ability of public institutions to use race- or gender-conscious hiring or promotion policies to redress historical imbalance absent clear evidence of past discrimination.

12 3: ADA/Section 504 Compliance Americans With Disabilities Act of 1990, as amended Requires that qualified individuals with a disability be provided reasonable accommodations unless the requested accommodation would fundamentally alter program or activity or create an undue hardship. Undue hardship depends on all of the circumstances. Section 504 of the Rehabilitation Act of 1973 Recipients of federal funds required to provide reasonable accommodations for disabled students to enable not merely participation but opportunity to benefit from educational program Does not require institution to lower admission standards or alter essential content of offerings. Technical Compliance Requirements: Designate at least one person as responsible for ensuring compliance Establish grievance procedures Publish notice of nondiscrimination in relevant materials Ensure accessibility, including parking

13 2:Legal Exposure for Minors on Campus In general, the state and its agents are not constitutionally required to protect individuals from harm by third persons. Exceptions: State created danger or special relationship. Under Title IX, institution may only be held liable for an underage student where appropriate person has actual knowledge and acts with deliberate indifference to conduct which is severe and pervasive so as to deprive the student of access to educational opportunities or benefits. Strict compliance with child abuse reporting laws is critical!

14 1:Discrimination Claims by Faculty and Staff Title VII of the Civil Rights Act of 1964 Prohibits discrimination on the basis of race, color, religion, sex, or national origin. Disparate Treatment Claims (McDonnell-Douglas analysis) Disparate Impact Claims Sexual Harassment Claims Quid pro quo vs. hostile work environment Age Discrimination in Employment Act Section 504 of Rehabilitation Act of 1973 Americans with Disabilities Act of 1990 (as amended)