Legal Issues in the Classroom (2003)

Presentation to the Appalachian College Association Teaching and Learning Institute
By Donna Euben, AAUP Counsel
June 4, 2003

I. Free Speech Issues in Higher Education

A. Institutional and Individual Academic Freedom

Federal courts have referred to the academic freedom of educational institutions as well as of individuals within those institutions (e.g., students, faculty members).

There are "four essential freedoms of a university--to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study." Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring).

"Our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . The classroom is peculiarly the 'marketplace of ideas.' The nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative selection.'" Keyishian v. Board of Regents of the Univ. of New York, 385 U.S. 589, 603 (1967).

See also:

"Academic freedom thrives not only on the robust and uninhibited exchange of ideas between the individual professor and his students, but also on the 'autonomous decisionmaking [of] . . . the academy itself.'" Parate v. Isibor, 868 F.2d 821, 826 (6th Cir. 1989) (quoting Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 226 & n. 12 (1985)).

Academic freedom includes "the freedom of the individual teacher (or in some versions--indeed in most cases--the student) to pursue his ends without interference from the academy." Piarowski v. Prairie State College, 759 F.2d 625, 630 (7th Cir. 1985).

But see:

"Our review of the law . . . leads us to conclude that to the extent the Constitution recognizes any right of 'academic freedom' above and beyond the First Amendment rights to which every citizen is entitled, the right inheres in the University, not in individual professors . . . ." Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).

B. Academic Freedom of Faculty Members and Students

Academic freedom rights are not coextensive with First Amendment rights, although the courts have recognized a relationship between the two. The First Amendment protects from regulation by public institutions, including public colleges and universities, expression on all sorts of topics and in all sorts of settings. Academic freedom, on the other hand, addresses rights within the educational contexts of teaching, learning, and research both in and outside the classroom--for individuals at private as well as at public institutions. Accordingly, in addition to the First Amendment and some state laws, academic freedom has also been recognized and protected in higher education by academic policy, practice, and contracts. Academic freedom rights are often explicitly incorporated into faculty handbooks, which are sometimes held to be legally binding contracts. Academic freedom rights may also be protected in faculty collective bargaining agreements and in publications applicable to students.

1. Faculty:

The AAUP's     (excerpted below) is the seminal statement on academic freedom for faculty in higher education. It has been endorsed by over 170 scholarly and professional organizations and is incorporated into many college and university faculty handbooks.

Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties. . .

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.

College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

2. Students:

The 1967 Joint Statement on Rights and Freedoms of Students (excerpted below) discusses the free expression rights of students:

Freedom to teach and freedom to learn are inseparable facets of academic freedom. The freedom to learn depends upon appropriate opportunities and conditions in the classroom, on the campus, and in the larger community. Students should exercise their freedom with responsibility. . .

Students should be free to take reasoned exception to the data or views offered in any course of study and to reserve judgment about matters of opinion, but they are responsible for learning the content of any course of study for which they are enrolled. . .

Students and student organizations should be free to examine and discuss all questions of interest to them and to express opinions publicly and privately. . . .

As constituents of the academic community, students should be free, individually and collectively, to express their views on issues of institutional policy and on matters of general interest to the student body. . .

The student press should be free of censorship and advance approval of copy, and its editors and managers should be free to develop their own editorial policies and news coverage. . .

College and university students are both citizens and members of the academic community. As citizens, students should enjoy the same freedom of speech, peaceful assembly, and right of petition that other citizens enjoy and, as members of the academic community, they are subject to the obligations which accrue to them by virtue of this membership.

C. Faculty Academic Freedom in the Classroom: Some Recent Cases

Recent challenges to the academic freedom of students and faculty members in higher education include (among others), restrictions on teaching methods, course content, and applications of K-12 precedent to the college and university setting. Generally, speech by professors in the classroom is protected under the First Amendment and under the professional concept of academic freedom if the speech is "germane to the subject matter." See, e.g., Kracunas v. Iona College, 119 F.3d 80, 88 & n. 5 (2d Cir. 1997) (applying the "germaness" standard to reject professor's academic freedom claim because "his conduct [could not] be seen as appropriate to further a pedagogical purpose," but noting that "[t]eachers of drama, dance, music, and athletics, for example, appropriately teach, in part, by gesture and touching"); see also AAUP, 1970 Interpretive Comments, Redbook at 5 ("[T]he intent of [the 1940 Statement] is not to discourage what is controversial [but] to underscore the need for teachers to avoid persistently intruding material which has no relation to their subject matter.").

1. Teaching Methods

Are faculty members able to select and use pedagogical methods they believe will be effective in teaching the subject matter in which they are expert? On the one hand, faculty members are uniquely positioned to determine appropriate teaching methods. On the other hand, faculty members may engage in unprotected speech in the classroom, such as religious proselytizing or sexual harassment.

Hardy v. Jefferson Community College: An African-American student and a "prominent citizen" complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct communications professor, in a lecture on language and social constructivism in his "Introduction to Interpersonal Communication" course. The students were asked to examine how language "is used to marginalize minorities and other oppressed groups in society," and the discussion included examples of such terms as "bitch," "faggot," and "nigger." The college did not renew Professor Hardy's appointment, and he sued. The Sixth Circuit found the topic of the class—"race, gender, and power conflicts in our society"—to be a matter of public concern and held that "a teacher's in-class speech deserves constitutional protection." The court opined that, "[r]easonable school officials should have known that such speech, when it is germane to the classroom subject matter and advances an academic message, is protected by the First Amendment." 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002).

Bonnell v. Lorenzo (Macomb Community College): The Sixth Circuit upheld the college's suspension of John Bonnell, a professor of english, for creating a hostile learning environment. A female student sued the professor, alleging that he had repeatedly used lewd and graphic language in his English class. The court stated that, "[w]hile a professor's rights to academic freedom and freedom of expression are paramount in the academic setting, they are not absolute to the point of compromising a student's right to learn in a hostile-free environment." The court found the professor's use of vulgar language "not germane to the subject matter." 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001).

Vega v. Miller (New York Maritime College): Edward Vega, a former non-tenure-track professor of English, sued the college, which did not reappoint him because he led an "offensive" classroom "clustering" (or word association) exercise in a remedial English class for "pre-freshmen" college students during summer school. The clustering exercise, which "is intended to help students reduce the use of repetitive words in college-level essays," involves students selecting a topic, then calling out words related to the topic, and then grouping similar words into "clusters." In Professor Vega's summer 1994 class, the students selected the topic of sex, and the students called out a variety of words and phrases, from "marriage" to "fellatio." None of the students or their parents complained. Administrators did not reappoint Vega, arguing that his conduct "could be considered sexual harassment, and could create liability for the college." Vega raised a number of claims, including that the nonreappointment violated his First Amendment right of academic freedom. The administrators argued that they were entitled to qualified immunity. The federal appellate court ruled that the administrators were entitled to qualified immunity because "no decision before 1994 . . . had clearly established that conduct of the sort that Vega undisputedly took violated a teacher's First Amendment rights." In so ruling, the court clearly stated: "Since this episode occurred seven years ago and involves a highly unusual set of circumstances, unlikely to be repeated, we see no reason to rule definitively on whether the Defendants' action was unlawful. . . . [W]e rule only that on the state of the law in 1994, the Defendants could reasonably believe that in disciplining Vega for not exercising his professional judgment to terminate the episode, they were not violating his clearly established First Amendment academic freedom rights." 273 F.3d 460 (2d Cir. 2001), cert. denied, 535 U.S. 1097 (2002).

2. Course Content

The Statement on Government of Colleges and Universities provides that faculty have "primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction . . ." REDBOOK at 221. "Faculty will always have the best understanding of what is essential in a field and how it is evolving." Poskanzer, THE FACULTY at 91. That is why institutions appoint such scholars to teach. Moreover, the expertise of a professor and a faculty department helps insulate administrators and trustees from political pressures that may flow from particularly controversial courses. See, e.g., David L. Wheeler, "Fort Lewis College Pulls Course on 'Poetics of Porn'," Today's News (Dec. 3, 2001) (suspending the listed seminar pending a "special session of the curriculum committee" to review the course for "academic integrity," and reporting that "some state politicians had expressed interest in reviewing all special-topics courses at all state institutions").

Axson-Flynn v. Johnson (University of Utah): Christina Axson-Flynn is a former student at the University of Utah. She is also a member of the Church of Latter-Day Saints. Axson-Flynn has sued her university theater department professors for violating her right to free speech and free exercise of religion under the First Amendment by requiring, as part of the curriculum, that students perform in-class plays despite her religious objections. As a part of the theater department curriculum, the professors assert that "it is an essential part of an actor's training to take on difficult roles, roles which sometime[s] make actors uncomfortable and challenge their perspective." The student alleges that she told the theater department before being accepted into the "Actor Training Program" that she refused to "take the name of God or Christ in vain" or use certain "offensive" words. The district court ruled against her. The court hypothesized that if the curriculum requirements were to constitute a First Amendment violation, "then a believer in 'creationism' could not be required to discuss and master the theory of evolution in a science class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a history class." The court found "reasonable for an acting program faculty to use such exercises to foster an actor's ability to take on roles they might find disagreeable." Axson-Flynn appealed the ruling to the Tenth Circuit, and oral argument was heard in November 2002. We await a court decision. 151 F. Supp. 2d 1326 (D. Utah 2001), appeal pending No. 01-4176 (10th Cir. 2002). AAUP's amicus brief in this case is available in .pdf format.

Yacovelli v. Moeser (University of North Carolina): On August 20, 2002 the university scheduled a schoolwide discussion for all new students based on the reading assignment, "Approaching the Qur'an: The Early Revelations," by Michael Sells, a professor at Haverford University. Anonymous students and named individual taxpayers sought to halt the summer program, arguing that the assignment of the book violated the Establishment Clause, which provides for the separation of church and state, under the "guise of academic freedom, which is often nothing other than political correctness in the university setting." The university defended itself, asserting that the program was not endorsing or promoting a particular religion, and that if the court issued an injunction, it would chill academic freedom, because "the decision was entirely secular, academic, and pedagogical." The federal district court ruled in favor of the school, denying the plaintiffs' request to stop the reading sections: "there is obviously a secular purpose with regard to developing critical thinking, [and] enhancing the intellectual atmosphere of a school for incoming students." The day of the reading program, the federal appellate court upheld the trial court's ruling. Case No. 02-CV-596 (U.S. District Court, Middle District of North Carolina, Aug. 15, 2002), aff'd, Case No. 02-1889 (4th Cir., Aug. 19, 2002); see Donna R. Euben, "Curriculum Matters," Academe: Bulletin of the American Association of University Professors, 86 (Nov./Dec. 2002).

Linnemeir v. Board of Trustees (Indiana University-Purdue University, Fort Wayne (IPFW)): Some taxpayers and Indiana state legislators sought to compel IPFW to halt the campus production of a controversial play, Terrence McNally's Corpus Christi. The Theatre Department faculty committee had unanimously approved the selection of the play as the senior project of a drama student. The plaintiffs alleged that the play was an "undisguised attack on Christianity and the Founder of Christianity, Jesus Christ," and, therefore, the performance of the play on a public university campus violated the separation of church and state under the Establishment Clause of the First Amendment. The Seventh Circuit denied the plaintiffs' request for a stay pending their appeal from the district court's refusal to grant a preliminary injunction. The majority opined: "Classrooms are not public forums; but the school authorities and the teachers, not the courts, decide whether classroom instruction shall include work by blasphemers." The opinion continued: "Academic freedom and states' rights, alike demand deference to educational judgments that are not invidious . . . ." 260 F.3d 757 (7th Cir. 2001); see Donna R. Euben, "The Play's The Thing," Academe: Bulletin of the American Association of University Professors, 93 (Nov.-Dec. 2001). AAUP's amicus brief in this case is available in .pdf format.

Edwards v. California University of Pennsylvania: Dilawar M. Edwards, a tenured professor in media studies, sued the administration for violating his right to free speech by restricting his choice of classroom materials in an educational media course. The classroom materials emphasized the issues of "bias, censorship, religion and humanism." The department had voted to use an earlier version of the syllabus for the introductory course. Thus, Edwards was teaching from a non-approved syllabus. The court declined to review the case under the standard of whether the professor's course content was "reasonably related to a legitimate educational interest" because "a public university professor does not have a First Amendment right to decide what will be taught in the classroom." The fact that Edwards' departmental colleagues approved a syllabus that Edwards declined to use seems to have contributed to the court's deference to the academic decision of the institution. Poskanzer, THE FACULTY at 89 (observing that "at some level the decision reflects deference to (collective) academic judgment," but that such "a consensus is always easier to obtain in opposition to unpopular or unconventional ideas"). 156 F.3d 488 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999).

Southern Christian Leadership Conference v. Louisiana Supreme Court (Tulane Environmental Law Clinic): The Fifth Circuit upheld Louisiana Supreme Court Rule XX that restricted the types of community groups that may be represented by law clinics, and prohibited law school clinics from representing "solicited" clients. Seemingly the rule had been amended in response to the Tulane law clinic's successful efforts in assisting a local community group to defeat a plan to build a plastics plant in its neighborhood. A number of plaintiffs, including professors and students, challenged the rule. They alleged, in part, that the rule violated the academic freedom of professors to teach and students to learn. Amici, including the AAUP, CLEA and AALS, argued in its joint brief that clinicians have a distinct form of academic freedom, and that academic freedom is not limited to the four walls of a classroom. The Fifth Circuit ruled that the limitation on the types of clients law clinics could represent did not "implicate any speech interests," and the solicitation restrictions did not violate the plaintiffs' rights of free speech: "At most, Rule XX indirectly discourages speech by refusing the educational experience of acting as an attorney in a particular matter to unlicensed student practitioners in clinics whose members or employees engaged in solicitation of that matter." In so ruling, the Fifth Circuit noted that the impact of the court's rule "on the educational experience is far from extreme," even though the court acknowledged that "the clinics themselves will either be forced to change their educational model or to refrain from soliciting particular clients." In the end, however, "this minimal impact on the clinics" was not suppressive. See Jonathan R. Alger, "Academic Freedom in the Real World," Academe: Bulletin of the American Association of University Professors, 119 (Mar.-Apr. 2000). 252 F.3d 781 (5th Cir. 2001).

II. Sexual Harassment Issues

A. Legal Standards of Sexual Harassment

Sexual harassment is a form of sex discrimination as recognized under laws such as:

Title VII of the Civil Rights Act prohibits sex discrimination in the terms and conditions of employment.

Title IX of the Education Amendment prohibits sex discrimination with regard to educational programs and activities (applies most frequently to students).

State anti-discrimination laws also prohibit gender discrimination, including sexual harassment.

B. Some Additional Points

• Harassment must be "on the basis of sex," not sexual orientation (e.g., "gay-bashing" is not covered). Sexual harassment may, however, involve individuals of the same sex (e.g., professor continually propositions same-sex student for sexual favors). See Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (finding actionable same-sex harassment under federal Title VII law).
• Although most institutional sexual harassment policies deal with "sexual conduct," nonsexual, gender- based harassment may also constitute sex discrimination (e.g., professor who continually berates female students as being "stupid in math").
• The same types of standards applied to sexual harassment are also used by courts to address harassment on the basis of race or other protected categories.
• Sexual harassment must also be unwelcome.

C. Sexual Harassment Categories

The law categorizes two types of sexual harassment:

1. Quid pro quo:

This type of sexual harassment occurs when a threat to the terms or conditions of employment, or educational benefits, which are conditioned on the performance of sexual favors. It creates an implied contract based on a power relationship. Accordingly, perpetrators must be agents or employees with some authority from the institution. The institution is automatically liable for such harassment.

"Mere offensiveness" is not enough to constitute sexual harassment.

• Such speech or conduct is directed against another and is either abusive or severely humiliating, or persists despite the objection of the person targeted by the speech or conduct; or
• Such speech or conduct is reasonably regarded as offensive and substantially impairs the academic or work opportunity of students, colleagues, or co-workers. The AAUP, Sexual Harassment: Suggested Policy and Procedures for Handling Complaints, Policy Documents & Reports 209 (2001 ed.).

a.Verbal: unwanted sexual teasing, jokes, remarks, or questions; unwanted comments on appearance; name-calling of a sexual or sex-based nature; pressure for dates or sexual favors.
b. Physical: unwanted sexual looks or gestures, unwanted deliberate touching, actual or attempted rape or sexual assault.
c. Written: unwanted suggestive notes or memos, pornographic material, or other materials of a sexual nature in the workplace.
d. Gossip: starting and spreading rumors about a person's sexual habits.

Hayut v. State University of New York: A female student in a professor's international politics course accused him of sexual harassment. The student alleged that the professor harassed her by referring to her as "Monica Lewinsky," and, according to the court, "making the following comments in front of the entire class: 'How was your weekend with Bill?', "Be quiet, Monica. I will give you a cigar later,' and 'You are wearing the same color lipstick that Monica wears.'" While the court found the professor's conduct "highly offensive and obviously inappropriate," it found that conduct only "sporadic and infrequent" and, therefore, insufficient to establish a hostile learning environment. In so ruling, the court found that the professor's conduct did not interfere with the student's "educational progress" because she maintained the same grade point average at SUNY New Paltz as she had before (at a community college) and after (Pace University). 217 F. Supp. 2d 280 (N.D.N.Y. 2002).

D. Free Expression and Freedom from Harassment

The Supreme Court has opined that sexual harassment can be distinguished from other behavior using "common sense, and an appropriate sensitivity to social context." In higher education, "an appropriate sensitivity to social context" requires recognition of the mission of a college or university as distinct from other workplaces, which include close working and mentoring relationships that often blur the lines between academic and social life. Jonathan Alger, "Love, Lust and the Law: Sexual Harassment in the Academy," Academe: The Bulletin of the American Association of University Professors 34 (Sept.-Oct. 1998).

In higher education, the educational benefits protected by law include academic freedom. Academic freedom permits faculty members to use a wide variety of teaching techniques, and faculty and students to engage in the free and open exchange of ideas:

If [sexual harassment] takes place in the teaching context, it must also be persistent, pervasive, and not germane to the subject matter. The academic setting is distinct from the workplace in that wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material.

The AAUP, Sexual Harassment: Suggested Policy and Procedures for Handling Complaints, Policy Documents And Reports 209 (2001 ed.).

The U.S. Department of Education in its Title IX policy guidance on sexual harassment of students recognizes the need for educational institutions to "formulate, interpret, and apply [their] rules so as to protect academic freedom and free speech rights." Fed. Reg. 62 (March 13, 1997): 12034, 12045-6.

The Department provides examples of protected academic discourse, even when that discussion may offend individuals. One example of protected discourse involves reading and discussion in a college-level creative writing course in which the professor's required reading list "includes excerpts from literary classics that contain descriptions of explicit sexual conduct, including scenes that depict women in submissive and demeaning roles," and student essays "which are read in class . . . [some of which] contain sexually derogatory themes about women." Fed. Reg. 62 (March 13, 1997): 12034, 12045-6.

Cohen v. San Bernardino Valley College: A student in Professor Cohen's remedial English class complained of the professor's use of vulgarities and obscenities in the class. The court found that the institution failed to give the professor warning about the sexual harassment policy; the policy delegated resolution of such complaints to "low level officials . . . on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application"; and the "vague policy discourages the exercise of first amendment freedoms." The federal appellate court ruled that the sexual harassment policy applied to tenured Professor Cohen was "void for vagueness." 92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997). See also Silva v. University of New Hampshire, 888 F. Supp. 293 (D.N.H. 1988) (finding sexual harassment policies vague or overbroad as applied to punish professors who used deliberately provocative teaching techniques to illustrate points in class and to sustain their students' interest in the subject matter of the course).

See also Section I(C)(1) ("Academic Freedom: Teaching Methods").

E. Institutional Liability for Sexual Harassment

In 1998 the Supreme Court focused on the nature of the harm caused by sexual harassment in employment situations. See Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998); Farragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).

The Court articulated the following liability standard:

1.Colleges and universities will automatically be liable for sexual harassment by supervisors that culminates in tangible employment action, such as, holding employers vicariously liable for harassment by supervisors which culminates in "tangible" employment action, such as discharge, demotion, or undesirable reassignment.

2. Employers will automatically be liable for sexual harassment by supervisors that does not culminate in tangible employment action, unless:

a. The college or university exercised reasonable care to prevent or correct promptly any sexually harassing behavior; and

b. The "employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer."
When students are harassed by faculty members, a college or university will be liable if a higher-level official--who at a minimum has authority to address the harassment and institute corrective measures on the school's behalf--receives actual notice of, and is deliberately indifferent to, faculty member misconduct.

Some institutional responsibilities include the following:

Publication and Dissemination: A sexual harassment policy should be easy to understand and widely disseminated each academic year.

Complaint Handlers: Procedures should make clear to whom complaints should be directed. Complaint handlers should be trained and accessible.

Due Process: Sexual harassment grievance procedures should protect the rights of both the complainant and the accused. See The AAUP, Due Process in Sexual Harassment Complaints, Policy Document And Reports 212 (2001 ed). Faculty peer review is an important component of the process for faculty, and helps to ensure that the context of higher education is properly considered.

F. Some Advice for Faculty

III. Consensual Relationships

AAUP recommends the following policy:

Sexual relations between students and faculty members with whom they also have an academic or evaluative relationship are fraught with the potential for exploitation. The respect and trust accorded a professor by a student, as well as the power exercised by the professor in an academic or evaluative role, make voluntary consent by the student suspect. . . . In their relationships with students, members of the faculty are expected to be aware of their professional responsibilities and to avoid apparent or actual conflict of interest, favoritism, or bias. When a sexual relationship exists, effective steps should be taken to ensure unbiased evaluation or supervision of the student.

There are basically three kinds of policies: absolute prohibitions, limited bans on faculty-student supervisory relationships, and strong discouragement.

A variety of institutional policies exist:

• The College of William and Mary "prohibits consensual romantic and/or sexual relationships between faculty members and undergraduate students as well as between faculty members and those graduate students for whom the faculty member has direct professional responsibility."
• The University of Michigan does not prohibit such relationships, but provides that such relationships are "potentially exploitative and should be avoided."
• The University of Iowa policy provides: "No faculty member shall have an amorous relationship (consensual or otherwise) with a student who is enrolled in a course being taught by the faculty member or whose academic work (including work as a teaching assistant) is being supervised by the faculty member."
• At Ohio Northern University, "faculty and staff members should not have sexual relations with students to whom they are not married."
• The Duke University policy provides that: (1) any situation of authority be terminated when a consensual relationship between a student and a professor exists or develops; and (2) the relationship be disclosed to the faculty member's supervisor.

Waters v. Metropolitan State University: A female student and male professor began a consensual relationship after the student was no longer enrolled in the college. When the relationship ended, the student filed a sexual harassment claim against the professor. The court found, in part, that there was no showing of sexual harassment because there was no evidence that the professor's actions were unwelcome. In so ruling, the federal appellate court relied on the district court's findings, which included that the female student was an "adult student, somewhat older than the 'typical' college student," and that the professor was no longer her teacher, and had never been her faculty adviser. 52 Fed. Appx. 1 (8th Cir. 2002) (unpublished).

IV. Grading Practices and Policies

A. AAUP Policies Applicable to Grading

1940 Statement of Principles on Academic Freedom and Tenure: A faculty right that flows from a "teacher's freedom in the classroom" is the assessment of student academic performance, including the assignment of particular grades.

The Assignment of Course Grades and Student Appeals: This AAUP statement establishes the following principles in assigning grades: (1) the faculty has the responsibility for the assignment of grades; (2) students should be free from prejudicial or capricious grading; and (3) no grade may be assigned or changed without faculty authorization. It provides, in relevant part, that administrators should not "substitute their judgment for that of the faculty concerning the assignment of a grade. The review of a student complaint over a grade should be by faculty, under procedures adopted by faculty, and any resulting change in grade should be by faculty authorization."

Statement on Professional Ethics: This AAUP policy provides:

As teachers, professors encourage the free pursuit of learning in their students. They hold before them the best scholarly and ethical standards of their discipline. Professors demonstrate respect for students as individuals, and adhere to their proper roles as intellectual guides and counselors. Professors make every reasonable effort to foster honest academic conduct and to ensure that their evaluations of students reflect each student's true merit.

Statement on Government of Colleges and Universities: This statement, which was originally formulated by the AAUP, the American Council on Education, and the Association of Governing Boards, provides:

The faculty sets the requirements for the degrees offered in course, determines when the requirements have been met, and authorizes the president and board to grant the degrees thus achieved.

B. Some Case Law on Grading

The U.S. Supreme Court has not directly addressed the issue of whether the assignment of grades is protected by the First Amendment right of individual professors to academic freedom. In Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), which upheld a faculty decision to dismiss a medical student from school, the Court opined that "[l]ike the decision of an individual professor as to the proper grade for a student in his course, the determination of whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking." In Justice Powell's concurrence, he opined that professors should retain "the widest range of discretion" in evaluating the academic performance of students.

1. Academic Freedom

Several federal appellate courts have considered the First Amendment protections afforded to professors in assigning grades:

Parate v. Isibor (Tennessee State University): Professor Natthu Parate, who taught civil engineering at Tennessee State University, sued the administration when his appointment was not renewed because he refused to sign a memorandum changing a student's grade from "B" to "A." The court found that the university had violated the First Amendment, reasoning that the "assignment of a letter grade . . . is a symbolic communication intended to send a specific message to the student . . . [and] is entitled to some measure of First Amendment protection." In so ruling, the court found the "message communicated by the letter grade 'A' virtually indistinguishable from the message communicated by a formal written evaluation indicating 'excellent work.' Both communicative acts represent symbols that transmit a unique message." And so, the court ruled, an "individual professor may not be compelled, by university officials, to change a grade that the professor previously assigned to the student . . . . Although the individual professor does not escape the reasonable review of university officials in the assignment of grades, she should remain free to decide, according to her own professional judgment, what grades to assign and what grades not to assign." At the same time, the court explained that a professor "has no constitutional interest in the grades which his students ultimately receive." Accordingly, the professor's rights would not be violated if the administration changed the professor's grade (as opposed to compelling the professor to do so). 868 F.2d 821 (6th Cir 1986).

Brown v. Armenti (California University of Pennsylvania): Robert A. Brown, a tenured professor at California University of Pennsylvania, sued the president of the university, claiming that Angelo Armenti, Jr. ordered him to change a student's grade from an "F" to an incomplete, which Brown refused to do. Brown failed a graduate student in a clinical education course, stating that she had attended only three of fifteen classes. The Third Circuit held for the university president, concluding that a "public university professor does not have a First Amendment right to expression via the school's grade assignment procedures." It opined: "Because grading is pedagogic, the assignment of the grade is subsumed under the university's freedom to determine how a course is to be taught." In so ruling, the court rejected the reasoning in the Parate decision (above) and, instead, embraced the reasoning in the Edwards case (above), because the latter decision offered "a more realistic view of the university-professor relationship." See Robert O'Neil, "Free Speech for Professors: 2 Court Rulings Sound New Alarms," The Chronicle Of Higher Education (Point of View) (June 1, 2000) ("[I]f professors' grades are no longer sacrosanct, then it is much more difficult to resist pressure to alter disputed grades, award degrees when faculties have declined to do so, waive academic requirements--and so on through a lengthy list of matters that most administrators and trustees wisely view as part of faculty governance. That is a frightening prospect, at which all parts of higher education should take alarm."). Donna R. Euben, "Making the Grade?," Academe: Bulletin of the American Association of University Professors, 94 (Sept.-Oct. 2001). 247 F.3d 69 (3rd Cir. 2001).

Yohn v. University of Michigan: A panel of four professors unanimously flunked two dentistry students, who were taking a clinical course for a second time. The acting associate dean then informed the panel that the students would be allowed to retake the exam, and that other faculty members would grade it. The students retook the exam, which involved crafting temporary bridges, and received passing grades. Professor L. Keith Yohn, an associate professor of dentistry, is suing the institution for changing the grades of the make-up exams from "Fs" to a "C" and "C+." He asserted a number of legal claims, including that changing the failing grades to passing ones violated his free speech rights. "Dentistry Professor Sues U. of Michigan Over Grade Change," The Chronicle of Higher Education (Feb. 11, 2000). In May 2001 the district court ruled in favor of the university on the First Amendment claim. Relying on Parate, the court found that Yohn had failed to allege that he was forced to change the students' grades and, "[t]herefore, the evidence does not support a First Amendment violation of Plaintiff's right to academic freedom." The Sixth Circuit affirmed the district court ruling, finding that the administration did not require Yohn to make the grade change, but, instead, the administration changed the grade. 39 Fed. Appx. 225 (6th Cir. 2002)

2. Due Process

Courts will review procedures used by a college to determine whether a grade is fair, i.e., not arbitrary, capricious, or in bad faith. Board of Curators v. Horowitz, 435 U.S. 78 (1979).

Wozniak v. Conry (University of Illinois, Urbana-Champaign): Louis Wozniak, a tenured professor at the undergraduate engineering school of the University of Illinois at Urbana-Champaign, sued the administration for violating his due process rights when it reassigned him from teaching owing to his failure to comply with established grading policies. The university's policy "requires professors to grade on a prescribed curve and to submit their grading materials." Wozniak turned in grades for two of his courses, but refused to submit the required materials for review. Wozniak claimed that the university barred him from teaching further classes, cancelled his research funds, and reassigned him to manage the department's webpage. His salary and title remained unaffected and he remained on the faculty. 236 F.3d 888 (7th Cir.), cert. denied, 121 S. Ct. 2243 (2001).

The Seventh Circuit ruled that the university did not violate the professor's due process rights because he declined to participate in numerous opportunities for review within the university. The court opined that due process had been afforded, especially where no material dispute existed about the professor's refusal to comply with the requirement that he submit his grading materials for review within the university: "Wozniak refused to follow the University's grading rules, and in this suit he trumpets a claim of a right to defy them." The court continued: "A faculty member is hardly in a position to argue that the opportunity to submit an explanation or statement of position in writing is inadequate; professors make their living by the written word. . . . " The court further observed,

No teacher has a fundamental right to hand in random or skewed grades, or to pretend that 95% of his students are better (or worse) than average. No person has a fundamental right to teach undergraduate engineering classes without following the university's grading procedures.

In so doing, the court noted, "Some universities offer their faculty more control over grading than [in this case] and maybe discretion is good. But competition among different systems of evaluation at different universities, not federal judges, must settle the question which approach is best. Each university may decide for itself how the authority to assign grades is allocated within its faculty."

Sylvester v. Texas Southern University, 957 F. Supp. 944 (S.D. Tex. 1997): Karen Sylvester, a law student at the university's Thurgood Marshall School of Law, took James Bullock's "wills and trusts" course. Bullock assigned Sylvester a "D," which dropped the student's class rank from first to third. Sylvester protested the grade orally and in writing on numerous occasions, and the school never responded. Bullock stated that he had lost her exam, but under orders, found that exam. TSU provided procedures for disputing grades, including that the academic standing committee would review protested grades and that the dean's office would notify students of the disposition of the matter in writing, neither of which occurred. Throughout the court-mandated review procedures, Bullock refused to provide a complete set of exam answers. The court ruled that, "[w]hile it is true that the assignment of a test grade is a purely academic evaluation, Sylvester is entitled to due process in that evaluation." The court opined, "Between active manipulation and sullen intransigence, the faculty, embodying arbitrary government, have mistreated a student confided to their charge." In the end, the court changed the student's grade to "pass," which resulted in her becoming joint valedictorian.

3. Some Practical Suggestions For Establishing Institutional Grading Policies

V. The Fair Use Doctrine

Professors are both creators and users of intellectual property. The fair use doctrine is one intellectual property concept with which most teachers in the classroom are familiar.

In The AAUP's Distance Learning Report (1997), the Association stated:

The fair use doctrine was developed by the courts, and codified in the 1976 revision of the Copyright Statute (Section 107). Fair use holds that it is not an infringement of copyright to reproduce copies or phonorecords for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. Four factors (purpose, nature, amount, and effect) are to be weighed in assessing fair use. This principle is well established in the traditional classroom setting, and is equally critical in a distance learning setting. (While the subcommittee did not directly address the question of what differentiates a traditional classroom from a distance learning setting, the conclusions regarding this issue, and others, are predicated on the assumption that there is no essential difference between the two in an educational sense. Both involve a controlled interaction between a teacher and a student in order to transmit knowledge and understanding.)

Fair use is not clear or precise and, for that reason, can be somewhat frustrating. One court opened that the doctrine is "so flexible as virtually to defy definition." Time Inc. v. Bernard Geis Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968). As Professor Robert Gorman has aptly summarized,

The statutory provisions of fair use are open-ended. They require the consideration, and the weighing, of a number of factors: the purpose of the copying, whether it is done for commercial or nonprofit purposes, the quantity copied, the nature of the copied material, and the adverse impact that copying may have on the market for the copyrighted work.

While the language is broad, its application by courts has been narrow.

To determine whether the fair use doctrine applies, there is a two-step analysis:

1.What is the purpose? The fair use of a copyrighted work, for purposes such as criticism, comment, new reporting, teaching, scholarship, or research, is not an infringement of copyright. This includes use by reproduction in copies, including multiple copies for classroom use.

 
2. Is the use of the material fair? To determine whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work. (The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors).

Each factor must be analyzed separately; it is a balancing of all the factors that results in decision of fair use. Courts have considered the following as fair use:

• Quotation of excerpts in review or criticism for purposes of illustration or comment
  
• Quotation of short passages in scholarly or technical work, for illustration or clarification of the authors observations
• Summary of an article, with brief quotations, in a news report,
  
• Reproduction by a teacher or student of a small part of a work to illustrate a lesson
• Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located at the scene of the event being reported.

Princeton University Press v. Michigan Document Services: An academic publisher sued a copy shop for copyright infringement, alleging that the copy shop excerpted portions of copyrighted works without permission. The copy shop bound segments of scholarship into "course packs." The course packs were then sold to students for use to fulfill class assignments. The court found that the fair use doctrine did not obviate the need to obtain permission to reproduce the works. The court, quoting another case, explained that the fair use doctrine "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." At the same time, the court noted that the fair use doctrine does not provide "blanket immunity for 'multiple copies for classroom use.'" The court reasoned that the factor regarding "the effect of the use upon the potential market for or value of the copyrighted work" was "the most important factor," and ruled that the publishers established a "diminution in potential market value." The court also noted that the professors assigned as much as 30 percent of one copyrighted work, and found that amount not "insubstantial." 99 F.3d 1381 (6th Cir. 1996).

Elsevier Science v. Custom Copies: In October 2002 MIT Press, Elsevier Science, and John Wiley & Sons filed a copyright infringement suit against a Florida copy shop for copies sold as course packs to students at the University of Florida at Gainesville. Case No. 02-CV-127 (N.D. Fl., Oct. 7, 2002); Megan Rooney, "Copy Shop That Made Coursepacks for U. of Florida Faces Lawsuit Alleging Copyright Infringement," The Chonicle of Higher Education (Oct. 14, 2002).

Elsevier Science v. Westwood Copies, Inc.: In January 2003 four publishers (those in the Florida case plus Sage Publications) sued a copy shop that assembles and sells course packs to students at the University of California at Los Angeles. Case No. 03-CV-283 (C.D. Cal., Jan. 10, 2003); Megan Rooney, "Publishers Sue Copy Shop, Alleging Infringement in Course Packs for UCLA," The Chronicle of Higher Education (Jan. 29, 2003).

VI. Student Privacy Rights

"Student privacy has always been a hot-button issue in academe, and faculty are often on the front lines of this debate." Ann D. Springer, "Do Students Have a Right to Privacy?," Academe: Bulletin of the American Association of University Professors 70 (Sept/Oct 2002). The Family Educational Rights and Privacy Act (FERPA) provides that identifiable information from student education records cannot generally be released to any third party without the consent of the student. 20 U.S.C. § 1232g. An "educational record" is defined as "those records, files, documents and other materials which-

(i) contain information directly related to a student; and
(ii) are maintained by an educational agency or institution or by a person acting for such agency or institution."

20 U.S.C. § 1232g(a)(4)(A)(i)&(ii). An institution's release of such information jeopardizes its federal funding, including student financial aid. Faculty concerns about FERPA are usually triggered in terms of grading practices. A recent decision by the U.S. Supreme Court suggests that faculty members may use peer grading in the classroom.

Owasso Independent School District v. Falvo: The parent of a grade-school age student sued the school district, claiming that the peer grading method embarrassed her child. The parent argued that the disclosure of her child's work and scores to student "graders" violated FERPA. The Court disagreed. It ruled that because the grades were not recorded in the teacher's grade book, they were not "maintained" by the institution, as required by FERPA. The Court noted that peer grading is a legitimate pedagogical tool that allows students to learn from the grading process. At the same time, however, the Court declined to rule on whether a grade book itself is protected as an educational record. 534 U.S. 426 (2002).

The U.S. Supreme Court considered FERPA again in 2002 in Gonzaga v. Doe. 536 U.S. 273 (2002). In that case the court ruled that no individual right of action exists under FERPA, which means that a student or parent aggrieved by the disclosure of personal records, as alleged in Falvo, cannot use FERPA to bring a lawsuit. In that ruling, the Court emphasized that FERPA focuses on a "policy or practice" of noncompliance, rather than the infrequent accidental disclosure of information. Accordingly, "faculty and administrations now have less need for worry about lawsuits resulting from the occasional release of student records." Springer, supra.

Congress recently amended FERPA in the U.S.A. Patriot Act. Those amendments make it easier for lawyers in the U.S. Attorney General's office to obtain court orders to access educational records relevant to an investigation or prosecution of terrorism. Once presented with such a court order, institutions must disclose the requested information. The amendments provide that the institution does not need to seek consent from the parent or student, or maintain a record of that disclosure. In addition, the FERPA amendments provide immunity for institutions that make disclosures in responses to these court orders. For a general overview of the recent FERPA amendments, under the U.S.A. Patriot Act, see "Recent Amendments to Family Educational Rights and Privacy Act Relating to Anti-Terrorism Activities" (U.S. Department of Education Apr. 12, 2002) <http://www.ed.gov/policy/gen/guid/fpco/pdf/htterrorism.pdf >.

VII. Indemnification Concerns of Faculty

The duty to defend and indemnify faculty by colleges and universities is grounded in a number of sources, including state laws, case laws, and institutional policies. Such indemnification policies are often included in faculty handbooks. The policies themselves vary significantly, depending on the institution and the jurisdiction. According to the AAUP,

There has been in recent years a steady growth in lawsuits filed against faculty members over the discharge of their professional responsibilities. Legal actions have been initiated by colleagues, by rejected applicants for faculty positions, by students, and by persons or entities outside the academic community. Litigation has concerned, among numerous issues, admissions standards, grading practices, denial of degrees, denial of reappointment, denial of tenure, dismissals, and allegations of defamation, slander, or personal injury flowing from a faculty member's participation in institutional decisions or from the substance of a faculty member's research and teaching. . . . . Colleges and universities have a responsibility for ensuring legal representation and indemnification to members of their faculties who are subject to lawsuits stemming from their professional performance in institutional service or their conduct of research and teaching.

AAUP's Statement, Institutional Responsibility for Legal Demands on Faculty, Redbook at 130.

For some legal purposes, faculty members may be agents of the institution when, for example, they are dealing with students enrolled in their courses. Department chairs are almost always considered institutional agents on a continuous basis.

As a general rule, institutional indemnification policies cover faculty for occurrences within their "scope of employment." For faculty members the question is, of course, what is considered outside the scope of employment?

• Is a professor covered who is personally sued for defamation when reporting on her scholarly research, which involved alleged labor abuses by the nursing home chain Beverley Enterprises, at a town meeting convened by legislative leaders? Cornell University decided to defend and indemnify Kate Bronfenbrenner. According to Nelson E. Roth, General Counsel at Cornell University, "Fundamental to this decision was the conclusion that the School of Industrial and Labor Relations, where Bronfenbrenner is the Director of Labor Education Research, encourages such public participation by its faculty members as part of its educational and research missions, the school paid her expenses, her 'job description' included public outreach, and the dean felt strongly that the activity was within the scope of employment."

• Is a consensual relationship "gone bad," where a student now alleges sexual harassment by his or her professor, outside the scope of employment? Courts have found sexual harassment to be outside the scope of employment. See, e.g., Farmers Ins. Group v. County of Santa Clara, 11 Cal. 4th 992 (1995). However, "sexual banter" may not be outside the scope of employment. See Jacobus v. Krambo Corp., 78 Cal. App. 4th 1096 (2000). Please note that some administrations are declining to indemnify faculty who fail to attend campus training programs on sexual harassment. See Mary Ann Connell, Ann H. Franke, and Barbara E. Lee, "Department Chair Online Resource Center: Agency and Indemnification" (ACE Department Chair Online Resource Center).

• What about a teacher who is alleged to have lured a student to his apartment to pick up her class assignment and then rapes and kills her? At least one court has ruled that criminal acts may be covered by a policy providing for defense and indemnification for conduct within the scope of duty. See, e.g., State v. McBrayer, 14 P.3d 43 (N.M. App.), cert. denied, 16 P.3d 442 (N.M. 2000). The court reasoned that the duty was returning homework and the criminal act was accomplished in connection with that duty.

• What about a professor who is sued by a student in a grading dispute? In Chasin v. Montclair State University, 159 N.J. 419 (1999), the N.J. Supreme Court ruled that the university was not required to pay the legal expenses of Barbara Chasin, a professor of sociology, who was sued by a student in a grading dispute under the state torts act. The court reasoned that the state had no duty to indemnify the professor because she had ignored earlier advice from the state's attorney general.

• What about a professor whose federal grant program is being investigated by the federal government? In Buchwald v. University of Minnesota, 573 N.W.2d 723 (Minn. App. 1998), a professor appealed the university's decision to deny his request for indemnification in the federal government investigation. The court noted that the indemnification policy clearly provided for the president to determine coverage, and that the president's decision to decline providing such protection to the professor was not arbitrary because the professor failed to cooperate in the investigation, including by failing to provide itemized time records.

AAUP's Statement, Institutional Responsibility for Legal Demands on Faculty, provides:

The Association recommends that colleges and universities adopt a comprehensive general policy on legal representation and indemnification for members of their faculties. The policy should ensure effective legal and other necessary representation and full indemnification in the first instance for any faculty member named or included in lawsuits or other extra-institutional legal proceedings arising from an act or omission in the discharge of institutional or related professional duties or in the defense of academic freedom at the institution. It should also include specific provisions as follows:

• The policy should include all stages of such legal action, threatened or pending, in a judicial or administrative proceeding, and all aspects of the use of compulsory process whether or not the faculty member is a party in the proceeding.
• The policy should ensure effective legal representation of the faculty member's interests, whether by the institution's regular counsel or by specially retained counsel, with due attention to potential conflicts of interest.
• The policy should be applicable whether or not the institution is also named or included in the legal action, though the institution might consider joining in the action as a party if it has not been named.
• The policy should provide for all legal expenses, for all other direct costs, and for court judgments and settlements.
• The policy may provide for legal representation and indemnification through insurance.
• The policy may provide for a faculty committee to make recommendations on the application of the policy to extraordinary circumstances not foreseen at the time of promulgating the policy of general application.

 
Some Suggestions for Faculty

• Be familiar with your institutional policies on indemnification
• Request that institutional counsel brief relevant faculty bodies on the policy and issues of which to be aware
   

 Updated 8/06