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Illinois Community CollegeChief Student Service Officers

Legal Update:Creating Positive Learning EnvironmentsFor All Students

William C. KlingAncel Glink140 S. Dearborn, 6th FloorChicago, Illinois [email protected]

Introduction

“America's colleges and universities are, in theory, indispensable institutions in the development of critical minds and the furthering of individual rights, honest inquiry, and the core values of liberty, legal equality, and dignity. Instead, they often are the enemies of those qualities and pursuits, denying students and faculty their voices, their fundamental rights, and even their individual humanity.” Foundation for Individual Rights in Education, www.thefire.org

Introduction

“The university [college] student relationship is certainly unique. While its primary function is to foster intellectual development through an academic curriculum, the institution is involved in all aspects of student life. Through its providing of food, housing, security, and a range of extracurricular activities, the modern university [college] provides a setting in which every aspect of student life is, to some degree, university [college] guided. This attempt at control, however, is directed toward a group whose members are adults in the contemplation of law and thus free agents in many aspects of their lives and life styles. Despite the recognition of adulthood, universities [and colleges] continue to make an effort to regulate student life and the courts have utilized diverse theories in attempting to fix the extent of the university’s [or college’s] duty to protect students.” McClure v. Fairfuield University, (Conn. 2003).

Introduction

“When an educational institution issues a diploma to one of its students, it is, in effect, certifying to society that the student possesses all of the knowledge and skills that are required by his chosen discipline. In order for society to be able to have complete confidence in the credentials dispensed by academic institutions, however, it is essential that the decisions surrounding the issuance of these credentials be left to the sound judgment of the professional educators who monitor the progress of their students on a regular basis.” Olsson v. Board of Higher Ed. (New York, 1980).

Introduction

“Immigration Issues have become controversial in recent years…From drivers licenses to welfare– these issues have caused emotional debate as both sides wrangle over the rights and needs of immigrants. Since 2001, state legislatures have been battling another contentious issue– whether to provide undocumented students who have lived in this country for many years a chance at an affordable college education.” American Association of State Colleges and Universities, Policy Matters, Should Undocumented Immigrants have Access to In-State Tuition?, June, 2005.

Introduction

“America's colleges and universities are, in theory, indispensable institutions in the development of critical minds and the furthering of individual rights, honest inquiry, and the core values of liberty, legal equality, and dignity. Instead, they often are the enemies of those qualities and pursuits, denying students and faculty their voices, their fundamental rights, and even their individual humanity.” Foundation for Individual Rights in Education, www.thefire.org

First Amendment Issues

FIRST AMENDMENT – “Congress shall make no law...abridging the freedom of

speech", 1st Amendment, United States Constitution.

First Amendment Issues

Although the concept of academic freedom is often discussed in constitutional terms, it is "not a specifically enumerated constitutional right." The United States Supreme Court has found academic freedom to be a "special concern of the First Amendment. " The essentiality of freedom in the community of American universities is almost self‑evident. . . . To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. Sweezy v. New Hampshire

First Amendment Issues

In Widmar v. Vincent, the Court held that while the concept of academic freedom exists, "a university's mission is education, and decisions of this Court have never denied a university's authority to impose reasonable regulations compatible with that mission upon use of its campus and facilities."

First Amendment Issues

In discussing the Widmar decision in a subsequent case, Rosenberger v. Rector & Visitors of University of Virginia, the Court stated, “When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.”

First Amendment Issues

In Pickering v. Board of Education the United States Supreme Court found that comments by a teacher that district was spending too much money on athletics was matter of “public concern”, and not detrimental to the district.. The comments were protected speech under first amendment.

First Amendment Issues

In Crue v. Aiken, court found that professor and student contacts to prospective athletic recruits about Chief Illiniwek were constitutionally protected. The administration’s attempt to apply policy to prospective speech violated first amendment.

Due Process

Procedural due process is the method by which a person establishes, defends, or asserts rights, most often in a judicial or quasi-judicial hearing. Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any of additional or substitute procedural safeguards; and, finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Mathews v. Eldridge (U.S. Sup. Ct).

Due Process

The recognition of students’ constitutional rights to procedural due process has led the courts to review appropriate disciplinary tools, particularly suspension and expulsion. In Goss v. Lopez, the United States Supreme Court set out the procedural standard to follow before implementing discipline. Citing potential infringement upon a student’s property and liberty interests under the United States Constitution, the Court held that, at the least, “rudimentary due process” is required. Thus, prior to imposing a disciplinary sanction: 1) a hearing must be held to discuss the alleged misconduct; 2) the basis for the proposed discipline must be discussed; and 3) the student must be given an opportunity to respond.

Liability for Student Injury

University student who was injured as result of fraternity party prank brought suit against university, fraternity, and fraternity member who caused the injury when he stumbled and fell while carrying student on his shoulder. The court held that university, by its handbook, regulations, or policies, did not voluntarily assume or place itself in a custodial relationship with its students, so as to impose upon it duty to protect plaintiff from type of injury which occurred. Further, allegation that university equipped dormitory with security devices and provided security personnel did not establish duty to protect plaintiff from the activity which led to her injury. Rabel v. Illinois Wesleyan University..

Liability for Student Injury

The Illinois Hazing Act, 720 ILCS 120/1 et seq., states, “Whoever shall engage in the practice of hazing in this state, whereby any one sustains an injury to his person therefrom, shall be guilty of a Class B misdemeanor...The term ‘hazing’ in this act shall be construed to mean any pastime or amusement, engaged in by students or other people in schools, academies, colleges, universities, or other educational institutions of this state, or by people connected with any of the public institutions of this state, whereby such pastime or amusement had for the purpose of holding up any student, scholar or individual to ridicule for the pastime of others.”

Liability for Student Injury

University students were charged with hazing as result of initiation ceremony for new members of lacrosse club involving consumption of alcohol. The Supreme Court held that: (1) hazing is not absolute liability offense; (2) hazing statute is not overbroad; and (3) hazing statute violates neither equal protection nor limitation on special legislation. People v. Anderson, (Ill. 1992). Hazing is not absolute liability offense; rather, State must prove recklessness, knowledge, or intent. Hazing statute is not unconstitutionally overbroad; it reaches only conduct which recklessly, knowingly or intentionally results in bodily injury of person, and is reasonably related to goal of protecting possible victims of hazing

Liability for Student Injury

After being attacked by an adult student another adult student sued college for damages arising out of colleges negligence because he claimed attack was foreseeable. Court held that college owed no special duty to student to prevent attack. Even conceding a risk of harm was foreseeable because the District was aware of student’s violent tendencies, the plaintiff did not demonstrate any “dangerous condition” for which the college should be liable. Nworji v. Rio Hondo Community College (Calif. 2003).

Academic Policies

College did not act arbitrarily or capriciously in modifying its grading scale while student was pursing bachelor of science degree in nursing. College’s catalogues, handbooks and procedure manuals expressly reserved college’s right to change its academic policies, and change occurred as a result of performance of graduates on nursing exam. Bender v. Alderson-Broaddus College (W.V. 2002).

Academic Policies

Students not denied due process for University’s failure to notify them of informal decision concerning honor code violation. Nawaz v. State University of New York. (2002)..

FERPA ISSUES

United States Supreme Court recently held that FERPA’s non-disclosure provisoin creat no personal right to enforce. Court observed that FERPA’s non-disclosure provision speak only in terms of institutional policy and practice, not individual instances of disclosure. Gonzaga Univ. v. Doe (U.S. Sup. Ct. 2002).

FERPA ISSUES

United States Supreme Court also recently held that peer-grading procedures used by school district did not violate FERPA because peer-graded papers were not educational records. While court acknowledged that papers contained information directly relating to students, the peer-graded papers were not “maintained”, i.e., kept in a student file, by the school or school officials. Owasso Indep. Sch. Dist. v. Falvo, (U.S. Sup. Ct. 2002).

FERPA ISSUES

Plaintiffs sought access to the daily logs maintained by Department of Campus Security, and student disciplinary records and disciplinary hearings relating to allegations of student misconduct. College provided the requested security logs, but otherwise claimed that the records and hearings in question were exempt from public access under state law and FERPA. Court held that, under FERPA the final results of a disciplinary proceeding against a student accused of any crime of "violence ... or a nonforcible sex offense" could be released if the college determines that the student violated the college's rules by committing the offense. Thus, the trial court properly ordered disclosure of the "final results" of disciplinary proceeding against a student alleged to have committed a "crime of violence" or "nonforcible sex offense" where the college determined that the student violated the college's rules by committing the offense. Caledonian Record Publishing Co v. Vermont State College (Vt. 2003).

FERPA ISSUES

Newspaper sued state university to obtain records arising out of investigation of basketball coach (Bobby Knight) misconduct. Videotape showed Knight extending his arm and ctactding player by the throat during practice. Investigation ensued. Newspaper sought all records relating to student. Court found that under FERPA “federal policy”, student education records, including those related to Knight’s investigation, should not be widely disseminated to the public, and should not be released without consent except in narrow circumstances. However, information may be disclosable if “redacted”. Indiana Newspapers v. Indiana University (Ind. 2003).

Undocumented Students

COMMUNITY COLLEGE ACT:– Sec. 6-4a. In-state tuition charge.

A. Notwithstanding any other provision of law to the contrary, for tuition purposes, a board shall deem an individual an Illinois resident, until the individual establishes a residence outside of this State, if all of thefollowing conditions are met:1. The individual resided with his or her parent or guardian while

attending a public or private high school in this State.2. The individual graduated from a public or private high school

or received the equivalent of a high school diploma in this State.

Undocumented Students

3. The individual attended school in this State for at least 3 years as of the date the individual graduated from high school or received the equivalent of a high school diploma.

4. The individual registers as an entering student in the community college not earlier than the 2003 fall semester.

5. In the case of an individual who is not a citizen or a permanent resident of the United States, the individual provides the community college with an affidavit stating that the individual will file an application to become a permanent resident of the United States at the earliest opportunity the individual is eligible to do so.

Undocumented Students

B. This Section applies only to tuition for a term or semester that begins on or after the effective date of this amendatory Act of the 93rd General Assembly. PA 93-0007

Students with Visas

F-1 Full time student Academic and Language students Form I-20 A-B Eligibility Form Proof of Adequate Financial Resources Form I-134 Affidavit of Financial Support

Students with Visas

Must Maintain F-1 Status throughout stay Must maintain full course of study 12 hours On-campus employment of 20 hours Internships H-1B post graduation

Students with Visas

J-1 Exchange Visitor Students International Students sponsored for study By government, foreign university, international

organization Funding from source other than family

Students with Visas

Maintain full course of study Limited employment opportunities Up to 18 months post graduate for work experience

training Spouses and dependents admitted under J-2

Students with Visas

Admitted for vocational or technical training programs

Form A-20MN Stay through course of study and additional 30 days 12 hours of regular instruction

Speaker Bio

WILLIAM C. KLING is Of Counsel with the law firm of Ancel Glink in Chicago. He received his B.A. degree in Economics from the University of Colorado and his J.D. degree from Illinois Institute of Technology-Chicago Kent College of Law, with a Certificate in Environmental Law and Policy.Mr. Kling has provided advice and counsel to educational institutions, local governments and non-profit organizations both in the boardroom and the courtroom for over 15 years, as a private practitioner and as in-house counsel. He has extensive experience in all aspects of governance and management including labor & employment matters; children and youth issues including regular and special education; board governance issues; finance and bidding; planning and zoning, construction law; and community partnerships. During the 1980’s, Mr. Kling was an Urban Planner in Lake County, Illinois, where he focused on comprehensive land use planning, stormwater and solid waste management, zoning and subdivision review. From 1992 to 1998, as General Counsel at Waubonsee Community College in Sugar Grove, Illinois, he worked closely with local leaders as well as state and federal legislators on a number of policy initiatives. He was a founding member of the Illinois Community College Board Center for Policy Development Advisory Committee and chaired its Workforce Working-group. He also co-chaired the Greater Aurora Chamber of Commerce Legislative Committee for several years.Since joining Ancel, Glink in 1998, in addition to his corporate representation of school districts, public and non-profit entities, Mr. Kling served as Consortium Counsel for the South Cook Education Consortium, a coalition of elementary school districts on the Southern urban fringe of Chicago. In that capacity, he worked with the member school districts to secure funding for initiatives including technology enhancement, whole family education, and student workforce preparation and skills development.Mr. Kling is active in many professional development activities. He speaks and writes regularly, and has served on the IIT-Chicago Kent College of Law Public Sector Labor Law Advisory Committee for 15 years. Mr. Kling is an adjunct professor of law at IIT-Chicago Kent College of Law where he teaches a course he developed entitled “Legislative Advocacy”, and a Clinical Assistant Professor at University of Illinois Chicago, School of Public Health. For several years, he was an officer on the Giant Steps Illinois, Inc. Board of Directors, and the Executive Committee of the Consortium to Lower Obesity in Chicago Children (CLOCC). He presently serves on the boards of the Illinois Caucus for Adolescent Health (ICAH), Sports is Education Foundation, the Center for Teaching and Learning, the Interagency Nutrition Council (INC) and the Illinois Obesity Steering Committee. He also is on the Board of Trustees for the Illinois Council on Economic Education (ICEE). He was one of five attorneys serving as Counsel to Governor George Ryan’s Commission to Rewrite the Illinois School Code. He was also on Governor Rod Blagojevich’s Education Transition Team, and Chaired the Youth Violence Subcommittee. He was a member of the Illinois State Board of Education’s NCLB School Choice and Paraprofessional Task Forces, and presents annually at the state NCLB conference. He presently is a member of the Illinois Consortium for Educational Leadership under the State Action for Educational Leadership Project (SAELP). He has also chaired his local Parent Teachers Association’s Legislative Committees for several years. He has written extensively on municipal, school and local governmental law issues. He can be reached at [email protected] or 630.531.7977.