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Compliance
7/23/2015 12:00 AM

A racist incident occurred at the end of the semester at our university. We wish we could write that this, in and of itself, was notable, but it is not.

A racist incident occurred at the end of the semester at our university. We wish we could write that this, in and of itself, was notable, but it is not.

Unfortunately, racist incidents happen all the time — on our campus, your campus, and everywhere else in between.

And racism takes many forms. In daily interactions with others, much of the racism takes the form of micro-aggressions. It happens in the form of a slight, a stilted question, a concerned glance, or an unspoken — but very much felt — judgment.

What did make the racist incident on our campus notable is that it took consistently covert racist actions and made them exceedingly overt. A Twitter handle not affiliated with our institution but frequented by our students sent out a racist image that compared the riots of predominantly black people in Baltimore to wildlife.

That tweet rightfully sparked outrage on our campus. Students were galvanized. They met with the president, who sent a strongly worded letter to our community condemning the incident, and a campus rally ensued.

We all want to prevent such awful racist incidents from occurring in the first place, but we also realize that isn’t always realistic. While prevention work must continue, a campus identity and its values can be reaffirmed in moments of strife.

That’s why we’ve developed these recommendations to help frame the perspective of student affairs administrators when formulating responses to similar racist incidents on their campuses:

  • Don’t become so focused on the single racist incident that occurred that you fail to address the overall campus climate. A tweet can seem like a small thing. When a single tweet, composed of a picture and a couple of words, sparks outrage among a campus community, a seemingly small thing becomes colossal. It can be difficult to contemplate that in every conversation about this incident, we are not actually discussing the tweet. Sure, the tweet is vital. But focusing merely on that single incident is disrespectful of the entirety of the situation. That single event was merely the tipping point. The tweet became the most recent symbol of a history of systemic racism experienced by people of color. It also brought to light uncomfortable yet exceedingly important questions regarding the on-campus climate for students, faculty and staff. To the uninformed, creating a large-scale response to a single tweet may seem disproportionate. However, choosing too narrow of a focus can blind you from seeing the totality of the circumstances.
  • Balance policy with care. In the aftermath of the tweet situation, we had multiple opportunities to respond by just regurgitating our policies on protected speech and mass gatherings. But if we had done so, it’s most probable the students would have perceived campus administrators as either not expressing their rightful disdain for the incident or as attempting to stifle expression of their frustration. The tweet was anonymous. But even if we had known who sent it out, the student wouldn’t have faced any student conduct reprisal from the institution due to the action being protected speech. It was critical that we didn’t use this fact as a shield to hide behind. Instead, we focused attention on recognizing and helping the students construct a response that was within the parameters of policy while giving voice to their concerns.
  • Sometimes the leaders we need to follow are our students. From the initial buzz about the tweet to the social-media backlash and the rally, our students led the way. We often pride ourselves on our ability to solve problems. But in this case, the solution wasn’t ours to provide. It was critical for the response to come from the students. However, we provided guidance and support as the students sought to address an issue on their campus. This was civic engagement at its finest, with students providing a practical example of active, engaged citizenship.

The fact that the insensitive tweet wasn’t actionable from a policy standpoint didn’t prevent our student affairs administrators from taking other action. This is a crucial point. We must remember that our student conduct processes are merely one tool in our kit — we also have at our disposal advising and counseling skills, a network of collaborative partnerships across campus, and the ability to leverage our pre-existing relationships with students into rich conversations that facilitate growth and understanding. From these conversations, actions that truly begin to change campus culture are born.

Compliance
6/30/2015 12:00 AM

College and university campuses face new requirements to report on, respond to and prevent stalking, per the October 2014 revisions to the Clery Act.

College and university campuses face new requirements to report on, respond to and prevent stalking, per the October 2014 revisions to the Clery Act.

Although the legal definition may vary within each state, the revised Clery Act defines stalking as “engaging in a course of conduct directed at a specific person that would cause a reasonable person to: 1) fear for the person’s safety or the safety of others or 2) suffer substantial emotional distress.”

Stalking could include any of the following conduct:

  • Making unwanted phone calls.
  • Making threats.
  • Showing up unexpectedly.
  • Standing too close or trying to control personal space.

This type of conduct is already likely referred to a campus threat assessment and behavioral intervention team to assess the risk of violence and intervene if warranted. Campuses may find value in using these teams to evaluate stalking cases to assist in Title IX compliance.

Evaluate potential for violence

It doesn’t seem that a particular profile will accurately predict if someone will escalate from stalking to physical harm, just as there isn’t a complete profile of who will become the next active shooter on a college campus. However, BITs can identify and evaluate risk factors to help prevent escalation. Teams should provide annual training that covers the most recent research on risk factors associated with stalking that escalates to violence.

The motivations behind stalking include anger and jealousy triggered by rejection, loss or failure. Many BITs already consider these motivations as part of threat assessment, such as evaluating how former employees cope after termination and how students deal with failing a semester of classes.

BITs can also consider using instruments developed specifically for evaluating when a particular individual’s stalking behavior could escalate into violence.

Build a culture of reporting

Most stalking victims are stalked by someone they know, and often by a former intimate partner. Referrals to a BIT are most often made by someone who has more of an acquaintance-level relationship, such as faculty, staff or student leaders. Colleges must create a culture of reporting that allows and encourages reports of possible stalking to BITs — not just to campus police, victims’ services and Title IX coordinators.

The ability to assess and intervene greatly depends upon the amount of accurate information provided. Individuals might minimize a threat or stalking behavior because they don’t recognize it as cause for serious or immediate concern. Or the victims might try to address the issue themselves. Given the nature of stalking, BITs might have difficulty gathering enough information beyond what they can gather from interviewing the stalking victim or potential witnesses.

BITs are seeing more referrals resulting from virtual communication, including social media. Just as BITs can gain additional information about a suspected stalker from his social-media profiles, that same stalker can also use technology to make threats or learn more about possible victims in order to target them more effectively.

Reduce the risk

The risk-reduction programming required by the Clery Act can include offering students safety tips about how to keep their information private. And campus police can help BITs stay up-to-date with the information they can gather from online sources.

BIT threat assessment tools are usually designed to help evaluate the threat of targeted violence on a mass scale, such as a mass shooting or bombing. Because stalking typically involves fixation on one individual, the warning signs of escalation to violence might look different or be more difficult to detect than for mass violence. Case studies can help BITs determine if their assessment tools can effectively detect possible risk factors.

And BITs must still apply the difference between “making a threat” and “posing a threat” because stalking doesn’t always pose a risk of violence. For example, a student with autism who doesn’t accurately read social cues might follow and talk to another student, who then feels afraid because she perceives the student as threatening her.

But even if the BIT determines an actual threat doesn’t exist, the student conduct process, including Title IX remedies, mediation or counseling, can help to resolve the situation and put everyone at ease.

Consider measurements of success

Finally, it’s important to recognize that it might be impossible to determine if an intervention actually prevented a specific act of violence. However, the focus is on prevention, not prediction.

Rather than measuring success solely by an absence of violent incidents, colleges must see the value in ensuring that they have well-trained, well-resourced and well-trusted BITs. This approach might mean the BIT will receive a lot of referrals (including those that are low-level and not actual threats) but it also usually means that the campus community can rest assured in the knowledge that reasonable assessments are made and steps are taken to reduce the risk of threats and stalking escalating to violence.

Compliance
6/8/2015 12:00 AM

Rape, sexual assault and stalking all qualify as criminal acts that, ideally, should be investigated and prosecuted through the criminal justice system, just like all other crimes. However, when these incidents occur between students at a college or university, that institution must also respond.

Rape, sexual assault and stalking all qualify as criminal acts that, ideally, should be investigated and prosecuted through the criminal justice system, just like all other crimes. However, when these incidents occur between students at a college or university, that institution must also respond.

Some claim that colleges shouldn’t take any action until after the completion of a criminal proceeding. Meanwhile, others claim that colleges shouldn’t address such criminal behavior at all because that’s best left up to the police and the courts.

But when these incidents occur on college campuses, they often involve alcohol use and no witnesses besides the two students involved in the alleged crime — a scenario that usually discourages prosecutors from taking on the case. And that leaves victimized students and potential perpetrators to continue studying and residing alongside the rest of the college community.

That’s why colleges have an obligation and a vested interest in responding to these incidents — not only because of Title IX requirements, but also for the following reasons:

  • Trauma recovery is an individualized process. Each individual responds differently to victimization and trauma. Some may be prepared to file a police report right away, while others may need a long time to process the trauma before they’re ready to talk about it — let alone file a report or submit to a medical exam for a rape kit. While it’s ideal to report criminal behavior and collect evidence right away, sometimes victims need to focus all their energy on taking care of their basic safety and well-being before they feel ready to participate in an investigation or litigation. Until then, a survivor of sexual assault may just want to go back to attending classes and experiencing life as usual while going through the healing process, but without having to see the alleged perpetrator on campus.
  • Criminal/legal processes take time. College life can’t be put on hold while rape kits are processed, police investigations are completed, and court dates are scheduled. In fact, months and years can pass while both students wait for an outcome. In the meantime, classes, semesters and graduations all go on as usual. Waiting for completion of the criminal process before the college addresses the incident ends up creating an unfair situation for both students. If colleges don’t offer a victimized student recourse that allows her to continue to pursue her education without fear of further victimization or reminders of the incident (such as running into her alleged attacker in class), the college isn’t providing educational access to that student. Institutions also can’t allow individuals who pose a threat to others’ safety to remain on campus for the duration of the criminal justice process. On the other hand, it’s also unfair to withhold an accused student’s access to his education for the duration of the criminal justice process. Finally, participating in the criminal justice process requires a lot of strength and emotional energy that some individuals may not be willing or able to invest.
  • Different questions, different answers. The criminal process determines if a law was violated and offers justice. The student conduct process determines if policy was violated and issues sanctions designed to protect the safety of the college community and educate students. Given the possible outcomes of the courts, a high standard of proof is rightfully applied. In a student conduct process, an equitable standard of “more likely than not” or “more than 50 percent” is used to weigh the information regarding both students’ accounts of an event. No college should find a student “guilty of rape,” and of course no campus has the ability to sentence a student to jail. Instead, a college can issue a finding of responsible or not responsible for policy violations, such as sexual misconduct or other conduct that threatens the health or safety of another. And that college can also impose sanctions, including whether a student found responsible can continue to pursue his education at that institution.
  • Colleges don’t have a choice — but prosecutors do. Title IX requires colleges to respond to reports of sexual harassment — and a single act of rape or sexual assault constitutes a form of sexual harassment. Colleges often must address incidents that prosecutors wouldn’t likely be able to prove in court. The incidents usually involve alcohol and rarely involve “a stranger jumping out of the bushes.” And the incidents are often much more complex than those that go through the criminal justice system.
  • Colleges have obligations to their entire communities. Of course, sexual misconduct isn’t the only type of crime that colleges must address. College campuses also have their share of drug dealing/possession, assault, theft, fraud, and other conduct that violates the law and/or college policy. Failure to address these incidents results in a failure to educate students and may also put the safety of the community at risk.
Law and Campus
8/13/2013 12:00 AM

Case name: Gamage v. State of Nevada, No.: 2:12-cv-00290-GMN-VCF (D. Nev. 03/19/13).

Ruling: The District Court denied the defendant’s motion to dismiss, finding the plaintiff had alleged enough facts to allow the case to proceed.

Case name: Gamage v. State of Nevada, No.: 2:12-cv-00290-GMN-VCF (D. Nev. 03/19/13).

Ruling: The District Court denied the defendant’s motion to dismiss, finding the plaintiff had alleged enough facts to allow the case to proceed.

What it means: When a public higher education institution dismisses a student for academic dishonesty, such as plagiarism, it must give the student due process.

And that due process could include permission for the student to be represented by an attorney at a hearing.

Summary: Sujanie Gamage submitted a dissertation to her advisory committee in the chemistry program at the University of Nevada, Las Vegas in February 2011.

A chemistry professor filed a report in June 2011 alleging that Gamage’s dissertation contained plagiarized text.

After a hearing, the university’s academic integrity appeal panel found Gamage had committed plagiarism. She was removed from the program.

Gamage sued, disputing the academic misconduct and claiming violation of due process rights because she was prevented from being represented and/or assisted by an advisor at the hearing.

The university filed a motion to dismiss.

The judge said the Due Process Clause prohibited arbitrary deprivations of liberty.

Noting the complaint alleged UNLV prevented her from returning to the university and effectively from being admitted to another higher education institution, he ruled Gamage had adequately pled a deprivation of constitutionally protected interests.

The judge refused to dismiss the case.

You Be the Judge
8/7/2013 12:00 AM
Christopher Reichert enrolled in Ellzabethtown College in the fall of 2007. He informed the college he had attention deficit hyperactivity disorder, a seizure disorder, and learning disabilities in written expression and reading fluency. Reichert encountered difficulties in his sophomore and senior years.

Christopher Reichert enrolled in Ellzabethtown College in the fall of 2007. He informed the college he had attention deficit hyperactivity disorder, a seizure disorder, and learning disabilities in written expression and reading fluency. Reichert encountered difficulties in his sophomore and senior years.

He allegedly had a heated exchange with a professor when he attempted to drop a course. The professor reported the incident to the department chairman and a meeting was arranged to discuss other complaints against Reichert. The chairman concluded Reichert should be expelled because he represented a threat to others.

The provost overruled the chairman’s decision after Reichert and his parents protested. But Reichert claimed the provost and faculty members devised a multipart plan to force him out. Reichert alleged he was denied further accommodations, rumors were spread about him, and faculty members were told to “make a record of all [his] inappropriate behaviors.”

After a meeting between Reichert and the dean of students, the dean scheduled a disciplinary hearing, which was rescheduled because Reichert had a seizure. Additional meetings were scheduled to discuss Reichert’s professional competency and a plagiarism accusation. Because Reichert suffered a mental breakdown, the college allowed him to take a medical leave of absence but told him he had to face those hearings before returning.

Reichert filed a suit under 42 U.S.C. § 1983 for violations of his civil rights as a person with a disability. He also asserted a claim under 42 U.S.C. § 1985, alleging a conspiracy to violate his civil rights.

Reichert v. Elizabethtown College, et al., No. 10-2248 (E.D. Pa. 04/10/12)

Did the court dismiss the student’s claims?

A. Yes. The court dismissed the claims for violation of civil rights because the university was a private entity and wasn’t acting under color of law.

B. Yes. The court dismissed the claims alleging conspiracy because he couldn’t show that two or more people conspired to have him dismissed.

C. No. The court upheld the claims for violation of civil rights because the university, by virtue of being a recipient of federal funds, acted under color of law.

D. No. The court upheld the conspiracy claim because the allegations were sufficient to establish a possible conspiracy among college officials with the objective of having the student dismissed.

Correct answer: A and D.

The claims under 42 U.S.C. § 1983 were dismissed because Reichert couldn’t show the college was a “state actor.” But the judge noted Reichert’s allegations established the required elements for the § 1985 claim. Because he alleged the individual defendants held at least one meeting to unlawfully remove him and also asserted other allegations of disability-based discrimination, the judge decided not to dismiss the claim.

Editor’s note: This feature isn’t intended as instructional material or to replace legal advice.

Law and Campus
8/1/2013 12:00 AM

Case name: State of Illinois v. Oduwole, No. 5-12-0039 (Ill. App. Ct. 03/06/13).

Ruling: Illinois’ Appellate Court reversed the trial court’s judgment, holding that a Southern Illinois University Edwardsville student was wrongly convicted of attempting to make a terrorist threat.

Case name: State of Illinois v. Oduwole, No. 5-12-0039 (Ill. App. Ct. 03/06/13).

Ruling: Illinois’ Appellate Court reversed the trial court’s judgment, holding that a Southern Illinois University Edwardsville student was wrongly convicted of attempting to make a terrorist threat.

What it means: To prove a charge of attempting to make a terrorist threat, the prosecution must introduce more than just a few writings that appear to be threatening from a student who aspires to be a rap singer, plus weapons without bullets, and the opening of a PayPal account under a pseudonym.

Summary: Olutosin Oduwole, a student at Southern Illinois University Edwardsville, opened a PayPal account under the name “Jeff Robinson” on May 3, 2007. On July 16, the bureau of Alcohol, Tobacco and Firearms informed campus police Oduwole had recently purchased four pistols.

Campus police decided on July 20 Oduwole’s vehicle had been left unattended for more than two days. In accordance with university policy, a campus police officer prepared to tow it away. During a routine inventory of the vehicle’s contents, the officer found bullets in the console.

He also found a piece of paper depicting an inhaler and handwriting. Much of the writing was unconnected words, but it also had the phrase: “SEND 2 to … paypal account if this account doesn’t reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!”

Oduwole was immediately arrested and charged with attempting to convey a terrorist threat. A loaded pistol and nearly 2,000 pages of writings were seized from his room pursuant to a search warrant. A large percentage of the entries appeared to be rap lyrics or writings related to aspiring to have a rap career.

A more thorough search of the vehicle uncovered a knit cap with a ski mask hidden behind the back seat. The searches didn’t yield any indication of plans to distribute a threat or ammunition for the handguns Oduwole had purchased.

A forensic specialist concluded the handwriting on the paper was Oduwole’s.

A Microsoft Movie Maker file was found on the hard drive of his computer, but the file had been deleted. However, some captions remained in a compressed drive and the picture files had names of universities such as Harvard University and Penn State.

At his trial, Oduwole produced evidence he was an aspiring rap artist, and an expert testified the handwriting amounted to the beginning of a song.

Oduwole was found guilty of illegally possessing a firearm and attempting to make a terrorist threat. He appealed only the terrorist threat conviction.

The state argued the handwritten phrase on the paper, the creation of the Movie Maker file, and the opening of the PayPal account either individually or collectively was sufficient to support the conviction.

But the appellate court said there was no evidence Oduwole ever had a plan to disseminate the writing on the paper.

And it said PayPal accounts and Movie Maker files weren’t specially designed for unlawful purposes.

Finally, the court found no evidence Oduwole targeted anyone in whom he intended to instill fear. The panel didn’t mention a fake name on his PayPal account or the ski mask hidden in his car.

The panel concluded the evidence merely showed activities consistent with a variety of scenarios. It reversed Oduwole’s conviction.

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  • Meet the Editor

    Claudine McCarthy
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    Claudine brings two decades of extensive and varied experience in journalism and publishing to Student Affairs Today. An award-winning editor, Claudine keeps up with the ever-changing world of student affairs by staying in close contact with experts on various hot topics and by attending professional conferences
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