Western Kentucky University

Legal Issues in College Instruction

Legal Issues in College Instruction - FaCET WKU

Legal Issues in College Instruction

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Learning Objectives

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Upon completion of this module, you will be able to:

  • identify core legal issues in college instruction,
  • understand how to reduce your risk of legal action

 

This lesson will focus on a few areas of legal concern to college instructors. It cannot be exhaustive but may help you to understand your options more fully.

Please call on the staff of the Faculty Center for Excellence in Teaching at 270-745-6508 or facet@wku.edu with questions or for individual discussion. We are here to support you as you learn. You may also need to call on any of the following persons or offices for help with particular situations:

  • Your Department Head and/or Departmental mentor
  • Vice President of Student Affairs (270-745-2791)
  • University Attorney/General Counsel (270-745-5398)
  • Counseling Services & Testing Center (270-745-3159)
  • University Police (270-745-2548)
  • Faculty Center for Excellence in Teaching (270-745-6508)

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What are the Core Legal Issues in College Instruction?

The issues relate to:

  • individual student characteristics (e.g., Americans with Disabilities Act),
  • instruction (e.g., plagiarism/cheating, guests on campus, managing records, intellectual property) and administration (e.g., guests on campus, insurance matters),
  • serving as advisors to students (e.g., letters of reference),
  • our role as citizens in the USA (e.g., freedom of speech, jury service).

A. Individual Student Characteristics & the Law: the Americans with Disabilities Act

Federal law, such as the Americans with Disabilities Act, requires certain responses from universities and college faculty. It is good practice to include course introductory comments or a statement on your syllabus or course Web site that reference Student Disability Services (270-745-5004). Visit our Syllabus Ideas booklet for a sample statement.

You are not supposed to persistently ask if they have visited disability services as the decision to go is theirs to make. Instructors asking students if they might need assistance for a disability can lead to problems for the university. It is the student's responsibility to notify the instructor/WKU of their disability and need for accommodation and you will receive official notice of the expected accommodations. For example, one of the most common accommodations is more time on a test. You may query the SDS office about those accommodations, but you are obligated to implement what the SDS office ultimately determines is appropriate.

Other than SDS changes, you are not supposed to generate ideas for helping that student any further. Why?

You probably aren't an expert in the area and you could well do more harm than good. You also expose yourself and the university to risk when you venture into such areas. In addition, the student has a right to choose his/her own destiny, and if you are overly "helpful" it can be perceived as "harm." As a rule of thumb, select another student in the class and treat the student with a disability as you would treat that other student, other than the designated accommodations.

Public (K-12) schools have an obligation to help students with disabilities "be all they can be." Once a student is recognized as an adult (college level), the legal obligation is to help the student "be average."

As a general principle, however, effective course design that is generally sensitive to various disabilities also helps all students because it epitomizes clear communication. As you create course stimuli, consider how you might make it maximally accessible to persons with diverse abilities. For example, visit The Center for Universal Design to read the Principles of Universal Design or the Creating Accessible Web Sites tutorial for ideas of what to consider.

For more on this topic see the Nov-Dec 2005 Academe article "Disability Law and Your Classroom."

If you teach online you want to build in accessibility from the beginning as it is very challenging to add accommodations after the fact. Contact FaCET, Academic Technology, or TS Online for help in designing an accessible online course.

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B. Specific Instructional Challenges

Attendance and Participation

If in determining a student’s grade you intend to ascribe any weight to attendance, you should consider linking attendance requirements to classroom participation. For example, if in your syllabus, you assign 15% of the final grade to student participation in class discussions, classroom group work, etc., you could reasonably assign a lower grade to a student who was not present to participate in discussions or other participatory work compared with a student who was present.

Any questions concerning an appropriate statement for your syllabus should be directed to the Office of Academic Affairs. ---John Petersen, Academic Affairs (2002)

Why? Because in a court of law (or a grade complaint) it is easier to justify "participation" as the basis of a grade than it is mere "attendance." After all, a person may be "present" in body but not in mind.

There are, however, special situations in which you must know attendance.

  1. At the 2/3rds point of the term (the registrar will announce it in email),
    1. if a student has stopped participating in the course and is failing, then they are to earn an F/N grade and that grade has financial implications for their funding. (Keep documentation).
    2. If a student has stopped participating in the course and has a passing grade because the course points are loaded on the first 2/3rds of the course, then they receive that grade, unless your syllabus states that participation on an activity near the end of the course is required.
    3. If they submit meaningful work after that date but are still failing then they get a "simple" F.
  2. If you are teaching freshmen, you will be asked to complete a Fifth Week Freshman Assessment on each student and part of that involves knowing attendance.
  3. As of 2007 attendance records must be kept on students who are here on a visa. It may be wise, then, to collect attendance on all students rather than single out one subgroup.

Bottom Line: Know why you are grading in a particular way, explain it in the syllabus, and stick to your rules.

Cheating/Plagiarism

Plagiarism is an act of fraud. When the student who has cheated receives a degree the student is claiming to have satisfied all requirements. But if that degree is based on cheating or plagiarism, then the student is committing fraud.

Teachers must take such actions seriously if academic credentials are to have meaning. If other students feel cheaters are allowed to continue, they will become demotivated. You can read more on this topic in our booklet, Honesty in the Academy: Academic Integrity.

The Office of Judicial Affairs (270-745-5429) has requested to be informed about plagiarism or cheating cases as it can be helpful in establishing a pattern for a student and, thus allow more stringent intervention. The instructor should follow his/her syllabus in deciding on consequences for the student as the Judicial Affairs process is independent of what academics may choose to do.

The challenge in setting up your policy is not letting fear of plagiarisim and cheating upset the tone of your class. Start by setting standards for and expectations of honesty and state that you know most students are honest and you appreciate it.

WKU Computer Ethics Policy should also be reviewed.

Safety

For general emergencies, see our "Emergencies in the Classroom" one page flyer that you can carry with you to class.

Those who teach using hazardous chemicals may have some responsibility for seeing to their safe disposal. Homeland Security is generating new obligations for handling some materials. If you were not trained in the U.S.A., be sure to investigate U.S.A. regulations.

Minors

Teachers who invite children or other minors to campus to participate in a class activity face greater requirements to supervise appropriately. Don't assume accompanying parents are aware of local hazards or will supervise once they turn the child over to you.

For all practical purposes, Gatton students fall under the same guidelines as any other incoming freshman (where many are under 18). The exception is that Gatton students sign a waiver of their FERPA rights so that professors and instructors may share grades and classroom issues with the staff of Gatton Academy and their parents/guardians. Regarding field trips or travel, if it requires overnight, get parent permission for that specific event by working with the Gatton Academy. With the parent permission, treat them just like any other student. Common sense guides the rest, for example, don’t drink in front of the students and try to model responsible behavior as for any student, Gatton or WKU. If you have a question about a Gatton Academy for Math and Science student situation, call 270-745-3605 and ask for Tim Gott.

Privacy

Privacy of student records is one of the major areas with which we must concern ourselves.The Family Educational Rights and Privacy Act dictates that educational records are protected information. Be careful in their use and display and in discussing grades. Students have the first six days of the semester to set a privacy flag on their information. (You can see their status in TopNet).

Parents are not allowed access to student information, even if they are paying for college. If you are faced with a request from someone other than the student and are unsure of what to do, say you must check on policies and consult with the Registrar (745-3351) or your department head. Don't even admit they are a student in your class until you check.

To post course grades in a public location, for example, you must

___ strip off identifying names and numbers (partial social security or partial student ID numbers are NOT acceptable)
___  attach identifiers known only to you and the individual student.
___  Then you must re-order the information so it is NOT alphabetical and NOT in order by grades.
___  And, you need at least 25 students in the class, according to the university attorney.

It is also a violation to

  1. have students exchange papers and grade one another's, or
  2. have a stack of graded papers with student names on them and have the students sort through them to find their own paper.

Nothing online is private. The law at this time is to consider electronic documents (e-mail, course materials on your hard drive) as possessions of the university. The University reserves the right to expect appropriate behavior on computers and in our communications with students, just as you expect students to behave appropriately.

If you are at all emotionally upset or feeling righteous indignation, do NOT send e-mails to anyone until you've reflected overnight. Consider your e-mail messages a postcard, and think about how they would be viewed by an outside reader.

E-mail is public; therefore, be careful about discussion of grades in e-mail, especially to non-WKU email addresses. A signed permission from the student regarding e-mail discussion of scores is a bit of insurance.

Be careful also about using non-WKU Web sites (e.g., textbook publisher sites) that require students to register, especially if a student grade is involved or any association with a particular WKU course. NOTE: WKU has chosen NOT to release student schedules to third parties.

According to the university attorney, you may fax grades to a student if you obtain written permission from the student that includes the fax number the student wishes for you to use. Also be sure to use a cover page noting that the contents of the fax are private.

Answering machines: Do not leave grades on an answering machine. Ask them to call you back.

The one exception is the high school students in the Academy for Math and Science (see Minors above). These students have signed a waiver so that their parents do have access to educational information. Call 745-3605 if you have questions.

To learn more about student privacy rights, visit the module prepared by our Registrar. If you are in a health discipline, then HIPAA regulations may also apply.

Destroying Educational Records

State law mandates a schedule for destruction of educational records and requires you to record that destruction. Why? Not keeping records that you need to keep or having records that should be destroyed can create problems for you if a lawsuit arises.

Grades are to be kept for 1 year (whether they are paper, electronic or Blackboard format) unless there is a complaint. Student test papers and other data used in determining a grade are to be destroyed five years after the grade was assigned (following U0476 Student Credential File). You report the destruction at: http://www.wku.edu/library/archive/rm6.php. I know that is inconsistent but that is the latest interpretation (2011) of the Kentucky statutes from our records librarian.

Intellectual Property

As instructor you will be held to a higher standard in managing intellectual property than are students. An excellent resource to learn more about your rights and liabilities is the US Copyright Office. Remember that images, such as cartoons, are intellectual property as well.

At WKU our intellectual property policy (http://www.wku.edu/policies/research/policy_2_8101.pdf) generally allows the teacher ownership of traditional works of scholarship, such as lectures, etc. Nevertheless, in special circumstances (e.g., creation of a Web course) the university may reserve some rights of use for a period of time, to recoup the special investment it takes to create such a course.

Student intellectual property: student products are typically their property, not yours. If you wish to use a student paper as an example for later courses, it is best practice to solicit written, signed permission from the student for that purpose and for the form/media in which it will be displayed (e.g., on the Web, in print). You may also ask students if they wish their names attached to documents or if they wish the papers to be anonymous.

Field Trips

You may have occasion to require students to visit an off campus facility. It may be for a local Service Learning project, visiting a local historical site, travel abroad, etc. 

It is desirable that the field trips be listed in the description of the course in the catalog. The opportunity to change descriptions only comes up every few years. Talk with your department head about the procedure.

The university policy on field trips is found in the Risk Management handbook (http://www.wku.edu/finadmin/insurance/documents/managementbook.pdf).

Several weeks to several months before you travel, as per the Faculty Handbook, complete the Employee Travel Authorization form (available from the Dean's Office as some colleges use different forms, or from the Provost at http://www.wku.edu/academicaffairs/forms/forms.php).

As a part of planning visit the Insurance office at http://www.wku.edu/finadmin/insurance

  • to locate the field trip policy, found in their Information Handbook, linked at the top of the page, and
  • to learn about using and renting vehicles for such trips.

On Policies read about the Approved Driver's policy (under the Insurance section at  the http://www.wku.edu/policies/finance_administration.php).

Do NOT drive students anywhere without reviewing the policies so you will know what happens in the event of an accident or other issue. Understand the Insurance issues.

The students going should complete the Release and Waiver of Liability Form-Single Event (Under Insurance at http://www.wku.edu/finadmin/forms/index.php).

Depending on the nature of the trip it is advisable to obtain a copy of their insurance card, emergency contact information for several individuals, and information about medical conditions that would be important to know when travelling.

In addition, a person not going on the trip should have a list of those "getting on the bus" so that someone at WKU knows who actually left. The concerned department should have the list of those who really left plus an itinerary of the trip. The Study Away Program (http://www.wku.edu/studyaway/) may have additional advice. If international travel is involved, then International Programs should be informed. The Study Abroad website provides useful information for leading such trips.

Prescreening applicants to programs

Some programs, typically professional programs, such as teacher education or counseling, may require that applicants to the program pass a legal and even health (e.g., TB test) screening for acceptance. Or, they may state that disclosure of legal problems may be grounds for dismissal from the program. The program should have these policies clearly explained in their brochures and handbook for the program.

Malpractice Insurance?

Malpractice coverage for teachers is generally a very inexpensive rider on your home owner's insurance because, for most teachers, their home is their most valuable asset. It is, however, very rare for a teacher to be in a lawsuit over his or her educational practices.

It is advisable that you avoid giving students rides in your vehicle or taking them on field trips unless you have filed the proper paperwork for trips. If you teach a course that sends students away from campus on learning expeditions, then be sure that the course description in the catalog includes a sentence stating that field trips may be part of the course.

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Sexual Harassment

Keep interactions with students on a professional level. A teacher has power in the eyes of students and that will distort any attempt at a more intimate relationship and leave the teacher open to charges of harassment. When meeting with students (of either gender) leave your door ajar and never meet after hours or in a casual environment with just one student.

WKU typically provides training on sexual harassment. The 2007 program is available online. At the end you can print out a certificate showing you have completed it.

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C. Constitutional Issues

Even meeting in a classroom is in the first amendment of freedom of assembly. Freedom of speech is an issue during exams. Students may arrive wearing baseball caps to cover messy hair or is it to hide their eyes as they look at a neighbor's paper? You may ask a student to put her or his cap on backwards, or you may ask everyone in the classroom to remove hats, but you may not ask a subset to remove a particular type of hat (e.g., U.K. hats only).

Tip: Present all exam instructions several days before the exam because they listen better in advance. Include issues such as bringing a photo idea, only allowing clear water bottles with labels removed (so they can't write answers on them), or all caps must be worn with the brim to the back.

Of course the Constitution is the foundation behind your Academic Freedom. You have the right to teach whatever you need on the discipline you are hired to teach. Note, however, that this freedom doesn't extend to comments beyond your subject matter when made in the classroom.

Our government reserves the right to call up citizens for certain duties, such as military or jury service.

From Teaching Spirit, Vol 17, No. 6: Jury Service & Teaching

How do you react when a student shows you a document and says “I’ve got Jury duty”? What are the legal issues for you and for the student? Do you tell him or her to “get out of it”? Or, do you take it as an opportunity to teach civic responsibility?

Legally an employer must release a person to jury service without penalty. If the employer tries to impose a penalty, the employee may sue the employer, and the Court may also hold the employer in contempt. Judges, like teachers, have heard many excuses and are not inclined to release individuals from their duty as citizens.

Educational institutions do not have the same legal obligation as an employer to cooperate with a student summoned for jury duty but a summons to appear for jury duty is a court order, and students should not be encouraged to disregard the summons or attempt to avoid service in ways that are fraudulent." However, given our educational mission, I believe we have a moral obligation to accommodate students who must serve. Read more....

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D. Career Advising and Help

Student advising is another point of potential educational improprieties, and these include the quality of the advising that you provide your students. The courts seem to be leaning toward increasing responsibility for campuses to provide appropriate, active advising on plans of study and career directions. This tendency also holds true for advising student clubs. If you do advising, do it well. For details on ethical and legal issues affecting faculty in student recruitment and hiring, visit this faculty guide (http://www.naceweb.org/legal/faculty_guide/)

The Academic Advising office and Career Advising

Writing Reference Letters

Students may ask you to write a letter of reference. This letter writing is a valuable service to the student IF you can provide a positive letter. If you cannot, you may wish to indicate this concern to the student and not write a letter to avoid legal issues. When writing a letter, indicate that the applicant requested the letter (and keep documentation of the request). I typically ask a student to provide me with a vita, a description of the position or graduate program, and the points he or she would like to have emphasized. In your letter remain objective, giving behavioral examples for your major points, and limit comments to issues pertinent to the position or program. Write only about matters of which you have direct experience. Do NOT include the students' GPA or other grades unless you have specific written permission to discuss grades.

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Now that you are worried about all the ways you can get into trouble, let's examine how to reduce your risk.

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How to Reduce Your Risk of Complaints
By Deborah Wilkins, University Attorney

__1. There is no way to avoid risk, but you can reduce it by following these principles.


__2. The best thing you can do is have a clear syllabus detailing matters like what text you’ll require, time obligations, meeting dates, clear expectations, quality of work expected, etc. Attendance policies are the most common source of complaints.


__3. In your syllabus, describe what conduct you expect from students. Be explicit. Are they supposed to speak? To be prepared for class? To work outside of class? Establish your parameters.


__4. Define in your syllabus exactly how grades are assigned.


__5. Communicate with students and tell them when you are accessible. I’ve observed that often underlying a complaint is a student's sense that they haven’t been treated with respect.


__6. Keep up with class rolls and don’t permit students to take the class if they are not on the rolls. We have had students come back years later expecting credit for a class they weren’t enrolled in. There is no right for the public to just sit in your class.


__7. Keep good records—grading, attendance, interactions with students. Particularly if you have a high maintenance student who is more likely to complain. Keep track of e-mails.


__8. Be cautious in your e-mail, while maintaining communication with students and being available. Keep it professional, on topic. Be aware that students will keep what you mail. Be clear.


__9. When a student succeeds with a grade complaint (which is rare) it is because the instructor cannot justify or explain how grading occurred. The typical complaint is not about the calculation but assertions that differences of opinion between the instructor and student or stereotypes are at work.


__10. Be flexible. If a student is called for Jury Duty, let them go. You won’t have much defense if they file a complaint about a bad grade because of penalties for doing their civic duty.

Student conduct in the classroom

Most complaints come from younger faculty who are less skilled and worried about offending students who are causing problems. Remember that other students are being offended by misbehavior and expect you to manage the behavior.

You will have more issues with material that lends itself to discussion. Some students can be disruptive, rude, tardy, sleeping, obnoxious. How to deal with it?

__1. Be clear with your expectations of class participation. (See sample syllabus policies from experienced teachers or ask FaCET for samples).

__2. No one has a right to go to college. You can expect appropriate behavior. Academic freedom doesn’t pertain to students.

__3. Maintain your boundaries. If you are too friendly or overly casual in your language in contexts outside of class, they may stop seeing you as the leader.

__4. Act promptly to address misbehavior. Don’t hope it will get better. Show the student correct behavior immediately.

__5. You are not alone. You can call on your colleagues, your Department Head, the Dean of Student Life, the Counseling Center, the Campus Police and the University Attorney for help with difficulty students.

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Conclusion of Module

In this module you have

  1. Reviewed 4 areas of legal issues for teachers: the Americans with Disabilities Act; Attendance; Instructional Issues such as privacy; Constitutional Issues; and advising issues.
  2. Learned a number of ways to reduce your risk of complaint or legal action.

    Review your syllabus and policies. Are you in compliance?

 


 

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