Date:  Tuesday March 6, 2012

Topic:  Legal Implications of Academic Advising

Presenter:  NACADA webinar – Audrey Wolfson Latourette, JD and Thomas Grites, both of Richard Stockton College of New Jersey

Becca Lynch, OSU General Counsel also recapped with OSU specifics and a reminder about the US Dept of Education rules

Summary:

Audrey Latourette, Professor of Business Law, gave an information packed 60 minute presentation about the legal implications of adcademic advising. Key topcs included:

* Judicial deference to academic decision making – historically courts have deferred to decisions made at universities and colleges when presented with cases brought by students.

*Soveriegn immunity – the 11th Amendment of the U.S. Constitution affords governmental immunity to states and by extension to state institutions (such as OSU!); however, the 14th Amendment allows sovereign immunity to be abrogated to ‘enforce guarantees of due process and equal protection’. 

      -Becca Lynch from the OSU General Counsel office added that if an individual employeer (such as an advisor) were to be named in a lawsuit, OSU has the right to remove the individual and replace them with “OSU”

*Types of Student Initiated Litigation against advisors and Universities:

    -Educational malpractice:  think  of this as ‘negligence’. An example is offering incorrect or incomplete information accidentally.  Courts have yet to decide in a student’s favor.  In general, as long as the college bulletin and other publications contain consistent accurate information, courts have ruled that advisors are not legally bound to convey accurate information, and that recommending that students speak with an advisor is an unenforcable desire.  Bottom line:  college students are adults who need to take responsibility for printed information that effects them.

    -Breach of a Fiduciary Relationship:  one party posesses expertise that another party bases decisions on.  Courts have so far declined to rcognize the advisor-student relationship as fiduciary in claims.

    -Estoppel: one party (student) relies on the information of another party (advisor) and changes position/actions based on the information, resulting in negative consequences.  An example would be an advisor telling a student there would be no long-term impact on waiting to take a course when doing so would actually delay the students graduation.    Courts have required that the student be able to show why they acted on the advsior’s information (justifiable reliance) and also show that the person giving the information (such as an advisor) must reasonably appear to have authority.

Becca added that the above three claims would all fall under Oregon Tort Law, which Oregon State University can be held liable under.  Again, if an employee is named as the defendant in the lawsuit, OSU can remove their name and become the defendant.

   -Breach of contract: so far courts have not considered oral modifications to the contract (catalog/bulletin) as binding.

These four are all likely to be unintentional.  Two other potential legal situations were covered:

   -Intentional misrepresentation:  students have been successful in cases where facilities, instructor qualifications or other aspects of the educational experience were repeatedly exaggerated or misrepresented both orally and in print.

   -Unlawful steering to/from a particular course due to race, gender, religion or other protected status.  This is not steering a student who struggles in math away from a physics major, it is when an advisor recommends coursework in a discriminatory way (example, moves all African American students toward a certain course, steers all women away from engineering, etc.)

Recommendations:

1.  Clearly set forth the student’s ultimate responsibility in all institutional publications, have advisors reinforce this.

2.  Eliminate ambiguities or inconsistencies in publications.

3.  Document!  Require all waivers or alterations to be documented and placed in student files.

4.  Formally train advising staff and faculty advsiors annually on policies, requirements, eligibility, etc.

Resources:

Avaialble until April 6:  view the presentation online!

Handout / powerpoint

2011 Initial Information about Misrepresentation legislation

Misrepresentation Rules 6-11