As everyone knows we are now in a more litigious climate with, as one person suggested, “at least one law suit going on for every person in America.” In addition to some general guidelines, there are several main areas where legal issues touch faculty members directly: confidentiality; sexual harassment and romantic relationships with students; academic integrity; disabilities; and copyright issues. TΦ101 is not your lawyer (and doesn't want to be), so you should review these issues with your department chair and, if necessary, with your institution’s general counsel. These are just guidelines:
- Follow the policies of your institution. Judges and courts have generally stayed away from ruling on purely academic matters, and have tended to respect and uphold academic decisions. No judge is likely to say, “This paper on Sartre looks like a B+ instead of a C- to me.” Judges are, however, very much interested in whether faculty members and colleges follow their own policies, and institutions will generally provide legal support to faculty members who follow the institutional policies. For example, suppose you penalize a student for an academic integrity violation, and you completely follow the policies of your school. These policies usually allow the student some appeal process, so assume that the student appeals but loses. If you and your institution follow those policies it is highly unlikely that any lawsuit would be successful. If there were such a lawsuit, your school, in defending its own policies, would also defend you. But if you penalize a student without following the policies of your own institution (for example, by not letting the student know that s/he can appeal), you may be much more vulnerable and the school will not necessarily be able or willing to defend you. From a legal perspective, a faculty member who acts outside of institutional policy may be “naked and alone.”
- Administrators hate surprises, so keep your department chair informed of anything that may be potentially problematic.
- Don’t say unprofessional and derogatory things in e-mails. E-mails are not confidential.
- Don’t talk to lawyers. Disgruntled students (and parents) will sometimes say that they have an attorney. You should politely respond: “I am happy to talk to you, but I cannot speak to your attorney. If you wish to be represented by counsel, your attorney should speak to the institution’s general counsel; let me give you the phone number.” Usually that is the last you will hear about the lawyer.
This section covers both student records and personal information that students reveal to you about themselves.
Confidentiality of student records: FERPA (the Family Education Rights and Privacy Act) governs the disclosure of “educational records,” and forbids faculty members from revealing things such as grades and class standing to people outside the university, unless they have permission from the student. Villanova University has a useful website on this topic.
Here are some things to do and to avoid:
- Don’t leave graded papers or grades where others can see them.
- Don’t discuss student grades or records with people outside the university without an explicit waiver from student.
- Don’t discuss student grades and records with other faculty members unless you have a specific educational purpose in doing so; you may not seek this information for personal interests, and don’t send e-mails to your colleagues warning them about former students who are now in their class.
- Don’t reveal student grades to other students.
- Don’t mention student grades and records in letters of recommendation without a written waiver, even if the student has asked you to write the letter of recommendation. (This sounds odd but it is true; you can, however, write most letters of recommendation without revealing educational records).
- Don’t talk to parents about grades, without specific written permission from the student.
- Don’t provide class lists to anyone outside your institution, especially for any commercial purposes.
These things are usually permissible:
- You may discuss academic records with your chair or other university officials.
- You may listen sympathetically to parents’ concerns about their student, while politely saying that you are not allowed to give specific information about grades.
- You may give general and hypothetical information about your course to a parent, e.g. “The midterm only counts for 25% of the test, so any student who does well on the papers and the final will still pass the course even if the student failed the mid-term.”
- If you think it is appropriate, you may discuss student work with parents in a general way, without revealing educational records, e.g. “Your student seems to understand the material, but has trouble writing the papers. I have suggested to your student the possibility of taking drafts to the Writing Center.”
- You may discuss your impressions of a student in letters of recommendation, e.g., “This student is bright, creative, works hard, etc.,” without saying, “she received the highest grade in the class.”
Confidentiality of personal information: Students will frequently come into your office and say: “I want to tell you something in strict confidence.” Remember, you are a faculty member, not a priest or a lawyer, and you have no legal obligation to preserve their confidentiality. If something they tell you implies that they or someone else is in danger, you should inform the appropriate person at the institution of the situation regardless of what assurances you have given. Generally speaking if a student tells you s/he wants to tell you something in confidence you could say: “I cannot promise you confidentiality until I know what it is you are going to tell me, and I definitely cannot promise confidentiality if you are going to tell me about someone being a danger to themselves or others. However, I can promise that I won’t reveal what you tell me unless I think it is absolutely necessary to do so, and I won’t reveal what you tell me without first discussing it with you.”
Sexual Harassment/Sexual and Romantic Relationships with Students
Paradoxically, while the social norms around sexuality may have become looser over the years, the legal restrictions have become stronger. Most institutions have a specific policy on sexual harassment and you should familiarize yourself with it. Many institutions also have a policy forbidding romantic and sexual relationships between faculty members and students (or others) over whom they exercise power relationships. Ultimately the real issue here is the abuse of power. Faculty members have power over their students and should not abuse that power in anyway. Creating a sexual climate in the educational process is typically abusive. Here are some basic principles.
Things to Avoid:
- Do not ever make anything remotely sexual into a condition or quid pro quo for any kind of educational advantage (e.g., “If you give me a massage, I’ll review some of the material with you.”)
- The law also defines sexual harassment in terms of “unwelcome behavior,” which could include talking about sexual material inappropriately in class, or asking a student for a date. If your behavior has a sexual component, do not assume that it is welcome, even if no one objects The fact that your student agrees to go on a date with you, does not mean that the student welcomed your behavior. The student may have been afraid to refuse you.
- Do not create a climate where students feel that sexual references or behavior make it difficult for them to learn and study effectively. Sexual jokes and comments in class, for example, might often have this effect.
- Do not date students in your classes, students who are majors in your department, or (if you are a faculty member) graduate students in your department, even if these students initiate or seem to welcome this contact. True love will wait until after the final exam.
- Also do not allow students to create a sexually harassing environment for other students in your class, by verbal or non-verbal behavior.
Things to Think About:
- Do you need to keep your door closed when you are having a conversation with a student? Ask your chair about the culture of your institution. In many institutions this would not be necessary.
- Is it permissible to hug and kiss students as a greeting, say at the beginning of the semester? One rule is this: wait for the student to initiate any physical contact.
- What should I do if a student in my office starts to cry about some personal issue? May I comfort that person with a hug? TΦ101's recommendation: always keep a box of tissues in your office, and offer the student a tissue. You don’t have to hug someone to show concern.
- Older students can be more vulnerable. Some of the most heartbreaking experiences involve older students. A young male instructor, who would never dream of dating a typical undergraduate, might think it much more appropriate to approach a divorced woman of his own age who has come back to college for another degree and is taking his class. Older students, however, are often much more intimidated by returning to college and can be much more vulnerable.
Students with physical and learning disabilities are legally protected and you should know both the legal issues and best practices.
If you are reproducing materials for your students or putting them on your website, you should understand the copyright laws.
As long as you follow your school's policy (which usually has some appeal process) you are unlikely to have legal issues in this area, but we also have a tips for preventing and dealing with cheating cases.
Author: John Immerwahr
Update: April 16, 2012