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==========================
CAP ELECTRONIC BULLETIN
EB 02.01 -- 4-08-2002
==========================
CURSE OR FAIL?
A recent case in *The College Student and the Courts* places
an interesting juxtaposition between academic requirements and
personal beliefs. In *Axson-Flynn v. Johnson,* 151 F. Supp. 2d
1326 (United States District Court of Utah, Central Div. 2001),
Christina Axson-Flynn applied for the Actor Training Program
(ATP) at the University of Utah.
Before her acceptance, Axson-Flynn attended an audition
conducted by ATP instructors. At the audition, Axson-Flynn was
asked if there was anything she was uncomfortable doing as an
actress. In reply, she informed the instructors that she would
not take her clothes off, use God or Christ as profanity, or say
the "f" word. While the instructors may or may not have known at
the time the reason behind these limitations, they were all
based on her religious beliefs as a Mormon. Despite these
limitations, Axson-Flynn was accepted.
After enrolling, however, many of the instructors began
suggesting that Axson-Flynn "get over" her objection to using
profane language because not doing so would stunt her
development as an actress. The instructors believed that taking
on difficult roles as an actress is an essential part of
training. Despite these suggestions, Axson-Flynn omitted words
and phrases that she found objectionable from one of her
required performances--without approval of or notice by her
instructor--and still received a high grade. This caused some
faculty to press her harder to use the offensive language. In
fact, one academic assignment did receive a lower grade due to
Ms Axson-Flynn's failure to use such language.
After approaching several administrators in the ATP, Ms
Axson-Flynn felt there was no option so she left the program. Ms
Axson-Flynn sued the University and the instructors under 42
U.S.C. § 1983, arguing that requiring her to use language that
she found objectionable amounted to a constitutionally
impermissible infringement of her rights to Free Exercise and
Free Speech.
While the Court quickly found no Free Exercise violation because
the program requirements were neutral, the free speech issue
required more analysis. What this involved was "compelled"
speech, which can also be a violation of the Free Speech clause.
The Court listed the test to determine whether compelled speech
is constitutionally impermissible as: (1) whether, as a
threshold matter, the speech is compelled, and (2) if so,
whether such compulsion amounts to the student espousing an
ideological point of view on behalf of the State.
The Court held, and the University agreed, that Axson-Flynn was
compelled to say words she did not want to use. However, the
Court did not find this compulsion as espousing an ideological
point of view. In the Court's opinion, the University required
Axson-Flynn to merely read some lines which she found offensive.
This did not amount to compelled speech in violation of the
First Amendment. As a result, the Court granted the University
its motion for summary judgment finding that the student's
rights were not violated.
Both the novelty of this case and its application to perhaps the
most valued First Amendment right, will likely see this case on
appeal. But it does remind administrators that if the
institution can demonstrate that compulsory speech relates to
academics, courts may be more inclined to find such speech does
not violate the Free Speech clause.
==========================
CAP ELECTRONIC BULLETIN
EB 00.4 - 9/25/2000
==========================
RESPONDING TO DISRUPTIVE STUDENTS: A CASE STUDY
Issues of school violence, campus safety, and classroom
disruption are especially important topics for college administrators
this year. Now available online -- without charge -- is a detailed case
study and commentary, suitable for faculty and staff training.
The case study and commentary, Responding to Disruptive
students: A Case Study, has been prepared by Gary Pavela, author
of the CAP monograph The Dismissal of Students with Mental
Disorders.
--------------------------
We also want to call your attention to a related series of articles in
the New York Times about multiple victim killings, including
possible patterns of behavior and warning signs. The Times found
that "most of the killers spiraled down a long slow slide,
mentally and emotionally. Most of them left a road map of red
flags, spending months plotting their attacks and accumulating
weapons, talking openly of their plans for bloodshed. Many showed
signs of serious mental health problems."
The Times series can be found at:
http://www.nytimes.com/2000/09/06/national/06ITHA.html
--------------------------
Finally, we alert our readers to our fall seminar,
Law & Policy in Higher Education: Critical Issues in 2000 being presented in Myrtle Beach, SC on October 25 - 28, 2000
==========================
CAP ELECTRONIC BULLETIN
EB 00.3 - 6/18/2000
==========================
NEW RESEARCH ON ACADEMIC INTEGRITY
The media -- including a recent "Nightline" special report -- are focusing on the issue of academic
dishonesty at schools and colleges. The tone is stridently gloomy,
portraying a generation of students as habitual cheaters.
The press tends to focus on bad news, ignoring favorable trends in
the larger society. One favorable trend related to academic integrity
is new research by Rutgers University Professor Donald L. McCabe
showing that schools with recently developed "modified" honor
codes have been able to create a campus culture with significantly
lower rates of academic dishonesty. McCabe's research is
important, because it shows structured changes in the campus
environment can influence student behavior, creating habits that
promote student ethical development.
An interview with professor McCabe on this topic (which originally appeared in *Synfax Weekly Report*) is now available online.
There is no charge or obligation for using materials at the CAP Web site,
but copyright permission should be sought if multiple copies are
produced.
Advice on how to create a
modified honor code will be one of the topics featured this October at the
fourth annual CAP Law & Policy in Higher Education seminar which will be held
on October 25 - 28, 2000 in a delightful ocean resort setting at Ocean Creek Resort in Myrtle Beach South Carolina.
As in the past, the seminar is being conducted by Donald D. Gehring,
Gary Pavela, and Parker Young. Topics will include:
- Academic integrity, "modified honor codes," & student ethical development
- Sexual harassment & academic freedom
- New legislation affecting higher education
- Law & policy issues related to the "online" university and electronic media on campus
- Institutional liability: "Is in loco parentis" returning?
- Due process in academic assessment, including evaluation of clinical performance
==========================
CAP ELECTRONIC BULLETIN
EB 00.2 - 4/6/2000
==========================
This has been a busy period in higher education law. Two important
developments -- featured in the CAP publications *Synfax Weekly Report*
and *The College Student and the Courts* -- are outlined below:
--------------------------------------------------------------------
FEDERAL COURT FINDS
DISCIPLINARY RECORDS PROTECTED BY FERPA
A federal district court for the southern district of Ohio recently
held that students’ disciplinary records are “education records”
protected from disclosure under the Family Educational Rights and
Privacy Act (FERPA). *The Ohio State University, defendants, and the
Chronicle of Higher Education (Intervenor-Defendant)* The Department of
Education brought the suit to block the disclosure of student
disciplinary records at Ohio State University and Miami University. *The Chronicle of Higher Education* had joined the two institutions
as a defendant.
The federal court’s decision calls into question contrary holdings
by state courts in Georgia, Ohio, and Maryland.
The *Chronicle* argued that FERPA’s purpose was not to protect
disciplinary records, but rather to withhold funds from institutions who
disclosed education records without the student’s permission. The Ohio
federal court disagreed, citing the plain language of the law.
Furthermore, the court found that Congress had in several ways indicated
its intent to include disciplinary records as protected “education
records.”
The federal court also dismissed the *Chronicle’s* contention that
college disciplinary records were law enforcement unit records exempt
from protection under FERPA. The court also held that the First
Amendment did not grant a right of access to disciplinary records --
since those records are not criminal in nature and “. . . do not provide
students with many of the procedural due process protections that
criminal defendants are afforded.”
The court even noted that “[i]t is possible that requiring access to
disciplinary records would be detrimental to the functioning of
disciplinary proceedings.”
--------------------------------------------------------------------
SUPREME COURT DECIDES STUDENT FEE CASE
College administrators sighed with relief last week, after a
unanimous Supreme Court held that a “viewpoint neutral” student activity
fee did not violate the First Amendment rights of students who objected
to subsidizing expression they found objectionable. *Board of Regents of
the University of Wisconsin System v. Southworth* No. 98-1189 (March 22,
2000).
Important questions remain after *Southworth*, as suggested in the
current issue of *Synfax Weekly Report.*
Why did all the conservative Justices on the Supreme Court endorse
the Court’s opinion, written by Justice Kennedy? Why did three liberal
Justices only “concur in the judgment,” joining in a separate opinion by
Justice Souter?
The answer, according to analysis in *Synfax*, is that Southworth is
not the blanket endorsement for campus student activity fees some
commentators suggest. Important seeds have been planted by the
*Southworth* opinion that will invite future litigants at public
colleges and universities to assert that student activity fees are
consistently (and unlawfully) used to support a narrow range of social
and political agendas.
--------------------------------------------------------------------
*SYNFAX WEEKLY REPORT*
1999 ANNOTATED INDEX NOW ON WEB SITE
The 1999 *Synfax Weekly Report* annotated index has now been added
to the cumulative index which appears on our Web site at
www.collegepubs.com.
---------------------------------------------------------------------
For information on or to order *Synfax Weekly Report* and *The College
Student and the Courts* please visit our web site at www.collegepubs.com
==========================
CAP ELECTRONIC BULLETIN
EB 0.1 - 2/19/00
==========================
CAP DEPARTMENT OF EDUCATION INTERVIEW
The CAP Web site now contains an exclusive *Synthesis: Law and
Policy* interview with officials of the Department of Education
concerning the Campus Security Act.
Topics include use of the Internet to provide a required annual
security report to the campus community; reporting crime statistics at
off-campus locations; and the availability of ongoing technical
assistance from Department of Education officials.
The fall issue of *Synthesis* contains a wealth of additional
information concerning the Campus Security Act, including full text
analysis by Associate Editor John Lowery. Subscription information is
available at our Web site, http://www.collegepubs.com
----------------------------------------------------------------------
1999 COMPENDIUM OF
SYNFAX WEEKLY REPORT
NOW AVAILABLE
A bound compendium of all 1999 issues of *Synfax Weekly Report,*
complete with index, is now in stock at $29.95 plus $5 S&H.
Orders can be placed at our Web site:
http://www.collegepubs.com/descrip/23.shtml
=======================
CAP ELECTRONIC BULLETIN
EB 99.4 - 10/19/99
=======================================================================
ETHICS AND THE PROFESSIONS:
A message from Alan Greenspan
Federal Reserve Board Chairman Alan Greenspan frequently makes news for his comments
about the stock market and the economy. This weekend, however, one of his speeches was cited
and discussed at the annual conference of the National Center for Academic Integrity at Duke
University.
The speech in question was Mr. Greenspan's June 1999 commencement address at Harvard
University (also reviewed in CAP's Synfax Weekly Report, 99.39 under the title "If consumerism
ends, introspection may begin"). The speech should be useful for educators, because it helps
students see the connections between ethics and the professions -- especially business and finance.
Mr. Greenspan observed, in part, that:
"At the risk of sounding a bit uncool, I say to the graduating class of 1999 that your success in
life, and the success of our country, is going to depend on the integrity and other qualities of
character that you and your contemporaries will continue to develop and demonstrate over the
years ahead. A generation from now, as you watch your children graduate, you will want to be able
to say that whatever success you achieved was the result of honest and productive work, and that
you dealt with people the way you would want them to have dealt with you.
"Civilization, our civilization, rests on that premise. It presupposes the productive interaction of
people engaged in the division of labor, driven -- I cannot resist the jargon - - by economic
comparative advantage. This implies mutual exchange to mutual advantage among free people.
Coercive societies and coercive relationships among people rarely enhance the state of what we call
civilization.
"I presume that I could offer all kinds of advice to today's graduates from my half century in
private business and government. I could urge you all to work hard, save, and prosper. And I do.
But transcending all else is being principled in how you go about doing those things.
"It is decidedly not true that "nice guys finish last," as that highly original American baseball
philosopher, Leo Durocher, was once alleged to have said.
"I do not deny that many appear to have succeeded in a material way by cutting corners and
manipulating associates, both in their professional and in their personal lives. But material success is
possible in this world and far more satisfying when it comes without exploiting others. The true
measure of a career is to be able to be content, even proud, that you succeeded through your own
endeavors without leaving a trail of casualties in your wake. I cannot speak for others whose
psyches I may not be able to comprehend, but, in my working life, I have found no greater
satisfaction than achieving success through honest dealings and strict adherence to the view that for
you to gain, those you deal with should gain as well. Human relations -- be they personal or
professional -- should not be zero sum games.
"And beyond the personal sense of satisfaction, having a reputation for fair dealing is a
profoundly practical virtue. We call it "good will" in business and add it to our balance sheets.
"Trust is at the root of any economic system based on mutually beneficial exchange. In virtually all
transactions, we rely on the word of those with whom we do business. Were this not the case,
exchange of goods and services could not take place on any reasonable scale. Our commercial
codes and contract law presume that only a tiny fraction of contracts, at most, need be adjudicated. If a significant number of businesspeople violated the trust upon which our interactions are based,
our court system and our economy would be swamped into immobility."
For additional materials on student ethical development programming, see our Web site at
http://www.collegepubs.com/ref/StudentEthicalDevelopmentProgramming.shtml
=======================
CAP ELECTRONIC BULLETIN
EB 99.3 - 10/4/99
======================================================================
AFFIRMATIVE ACTION PLAN
NOT "NARROWLY TAILORED"
An important affirmative action case was decided by a federal appellate court on September 24. Tuttle v. Arlington County School Board, 4th Cir. No. 98-1604 (September 24, 1999). The court's opinion contained good news and bad news for supporters of traditional affirmative action programs.
The good news is that the Fourth Circuit -- unlike the Fifth circuit -- declined to rule that non-remedial plans designed to achieve racial diversity in the schools can never reflect a "compelling state interest."
The bad news is that the court found that the “diversity” plan at issue (which may be similar to admissions policies now in place -- or contemplated -- at many colleges) was not “narrowly tailored” to achieve the state’s stated goal.
Particularly important to the court's analysis was the availability of race-neutral ways to accomplish the school's "diversity" goal, and the fact that the school's race-conscious admissions plan apparently would "continue in perpetuity" and had no "logical stopping point."
Extended excerpts from Tuttle (in question and answer format) and a practice implication commentary appear in the current issue of Synfax Weekly Report. The Synfax index (and ordering information) can be found at our Web site,
http://www.collegepubs.com/ref/sfxndx.shtml
------------------------------------
CAP subscribers should also be aware
of a second important case . . .
FEDERAL FINANCIAL ASSISTANCE TRIGGERS
WAIVER OF 11TH AMENDMENT IMMUNITY
The Fourth Circuit Court of Appeals has held that colleges and universities receiving federal financial assistance waive their 11th amendment constitutional right to be immune from suits to enforce Title IX.
In a sexual harassment suit brought by a student at George Mason University the student claimed that she was sexually harassed by a faculty member and then other faculty retaliated against her for reporting the harassment. The University claimed 11th Amendment immunity, but the district court said acceptance of Title IX funds is conditioned on the "unambiguous waiver of immunity."
The Court of Appeals upheld the district court's decision finding that Section 2000d-7(a)(1) of the Civil Rights Remedies Equalization Act provides that states "... shall not be immune under the Eleventh Amendment...from suit in Federal court for a violation of title IX of the Education Amendments of 1972."
The plain meaning of this wording is that "by accepting Title IX funding a state agrees to waive its Eleventh Amendment immunity." The case is Litman v. George Mason University, 4th Cir. No. 98-1742, 7/28/99.
For more information look for a complete brief in the October Issue of
The College Administrator & the Courts.
=======================
CAP ELECTRONIC BULLETIN
EB 99.2 - 9/21/99
======================================================================
FORT WORTH, TEXAS SHOOTINGS
AND "COPYCAT" PHENOMENON
The latest shooting incident in Fort Worth, Texas is the
seventh multiple shooting of its kind in 1999. Friday's New York Times
reports that the assailant "apparently had called two local newspapers in recent months to fantasize about serial killers."
Given the possibility that a "copycat" phenomenon can occur after
violence is reported in the press, it seems prudent to remind readers of
the U.S. Department of Education "Guide to Safe Schools," ("Guide")
available at
http://www.ed.gov/offices/OSERS/OSEP/earlywrn.html
The guide, developed with the help of an impressive array of experts in psychology, law enforcement, and education, is grounded in substantial
research, and contains many useful insights for educators.
Also available (without charge) at the CAP Web site at
http://www.collegepubs.com/ref/SFX990426.shtml
are excerpts from the Guide that we think are particularly important
for college administrators. Related advice and commentary drawn from
CAP's Synfax Weekly Report are included.
=======================
CAP ELECTRONIC BULLETIN
EB 99.1 - 8/18/99
======================================================================
NOTICE OF RULEMAKING
The U.S. Department of Education has published proposed
rules for implementation of the Student Right-to-Know and
Campus Security Act. Comments must be received by
September 15, 1999.
Links to the proposed rules appear on our Web site at:
Rules for Implementation . . .
College administrators will encounter persistent efforts to gain greater access to campus disciplinary proceedings. Now is the
time to begin a dialogue with student journalists about the ethical
obligations of their work. A good starting point for discussion is at
Ten Ethical Principles for College Journalists
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