Higher Ed Legal Frameworks
An institution of higher education is impacted heavily by the legal framework within which it operates; this includes federal law, state law, and local ordinances. Although the preeminence of federal law, particularly in the context of civil rights and discrimination, can give the impression that these institutions are primarily governed by federal law, in fact in many important respects they are not. Title IX is a notable example – see above for a more thorough discussion of this essential federal law. A college or university, while a recipient of federal funding, is also a covered entity and thus required to comply with the terms of Title IX. However there is no federal general anti-discrimination law in the area of employment as applied to colleges and universities; rather federal protections (like the ADEA and the ADA) apply only to employees aged 40 and over and employees with disabilities. Beyond these limited protections, higher education institutions, especially private institutions, are free to discriminate as they see fit – even if the discrimination is facially "under the radar" by, for example , imposing requirements that certain groups "need not apply" in job postings. In addition to Title IX, additional laws bearing directly on the operation of colleges and universities are: the Americans with Disabilities Act (ADA), which requires employers to make reasonable accommodations for qualified individuals with disabilities; Section 504 of the Rehabilitation Act, which applies to all federal contractors and subcontractors and specifically prohibits discrimination on the basis of disability in programs and actions that receive federal assistance; the Fair Labor Standards Act (FLSA), which bears on such matters as minimum wage and overtime requirements, as well as recordkeeping and retention; the National Labor Relations Act (NLRA), which bears on the employer’s duty to negotiate in "good faith" over terms and conditions of employment; the Occupational Safety and Health Act (OSHA), which impose requirements for the health and safety of employees; various state and local employment statutes, which vary by jurisdiction; and federal and state contract requirements based on a myriad of statutes.
Title IX, Gender Equity, and Sex Discrimination
With the intent to promote equal educational opportunities and prohibit sex discrimination, Title IX has been a part of the Educational Amendments since 1972. While Title IX was initially passed in response to sexual harassment claims and gender inequity in college athletics, Title IX is now applicable to all colleges and universities that receive federal funding. Concerning the scope of Title IX, the Supreme Court of the United States has held that sex discrimination includes claims of sexual harassment and sexual assault. See Davis v. Monroe County Bd. of Ed. 526 U.S. 629 (1999). Colleges and universities that receive federal funding must comply with Title IX and have undergone various changes in their duties under Title IX, as federal regulations and guidelines continue to evolve. Institutions must remain abreast of compliance obligations and changes in the law, or risk liability for violations of Title IX.
Intellectual Property in Academia
As with any business, intellectual property (IP) is a significant asset to higher education institutions. Higher education not only owns a substantial amount of intellectual property – in the form of research and innovation – but this property is often at the center of legal disputes and claims of infringement. Universities can be a target for patent trolls, because a lawsuit against a university is a cheaper suit than against a larger public company. The litigation costs are low for the university, but high for the university’s insurance provider, and many old universities are susceptible to these types of claims.
Patents, copyrights, and trademarks are the main categories of IP in the academic space. While a university may not use its name as a trademark to sell a tangible product, universities often have a personal interest in its name. Universities have a national and sometimes international reputation to protect. Depending on the size of the university, protecting the reputation and brand may be a substantial investment. Universities are more likely to have common law trademarks, rather than federally registered trademarks. Legal issues involving trademarks typically involve registration and infringement issues.
Copyright protections exist in an academic environment, but much of academia remains public domain because the material is created as part of a governmental job, and therefore the U.S. Copyright Office does not register the copyright. A private entity cannot trademark or register a copyright of material created by the government, because it falls under the public domain. However, university-created material can be protected if the university has an ownership interest in it, and has an enforceable agreement with the authors of the copyrightable work.
Patents are unique in the academic space because patent protection favors the inventor, not the employer. Therefore, professors are the inventors of any patent they create as part of their job, and typically the employment contract assigns the ownership of the inventions to the professor. Although the university may have a patent policy that requires the professor to assign the patent to the university, professors will typically copyright, maintain control over, and promote the invention on their own. Disputes between professors and universities over patent rights are not uncommon, and the university may face difficulty enforcing its patent policy when a faculty member refuses to comply.
First filed applications, abbreviated new drug applications, trademarks, and design patents all have first to file priority with regard to any pre-filing use. This means that the actual use is not required to receive a filing date, the date on the application is the important date, which is important for priority reasons. There are exceptions for certain patents, but most patents are first filed at the time of application.
IP issues in higher education include, but are not limited to, misappropriation of trade secrets, ownership of patents created outside of the employment relationship, eligibility under federal programs, and general protection of intangible property.
Student Privacy Rights Under FERPA
Section 5 – Student Privacy and FERPA Compliance
The Family Educational Rights and Privacy Act ("FERPA") is a federal law that protects student privacy. Under FERPA, higher education institutions have specific obligations towards protecting student information, including but not limited to academic records, grades, and other personally identifiable information. One of the primary protections under FERPA is that a higher education institution cannot disclose student education records without first obtaining a release from the student or executing an exception from the need to obtain a release. The release must be voluntary and specific. One common exception that often causes confusion deals with the definition of "directory information."
"Directory information" under FERPA includes information, which is not considered confidential and that an educational institution may disclose without a student’s prior consent. However, if a student opts-out of disclosing directory information, any disclosure of directory information becomes a violation of FERPA.
Apps, software and similar online services often use institution data in order to provide a school with certain features and functionality. Any such disclosure to these vendors may be considered a disclosure of student information. Higher education institutions are willing to disclose such data, but only if the vendor provides sufficient assurances of its compliance with FERPA.
While most universities and other higher education institutions are familiar with student privacy and FERPA issues, these issues are high stakes. Even civil monetary penalties and sanctions can be severe.
Disability Law: Accommodations, Service Animals and the ADA
As a result of the Americans with Disabilities Act (ADA), Title II of the ADA requires state educational institutions to operate their programs and activities so that, when viewed in their entirety, they are readily accessible to and usable by qualified students with disabilities. 42 US §§ 12132-33. Accessibility includes both physical and virtual spaces; including classrooms, laboratories and computer facilities. Institutions of higher education are obligated to provide "reasonable accommodation" for a qualified student with a disability so that he or she can participate in educational programs, unless the institution can demonstrate that the accommodation would impose "an undue burden . " 29 CRF § 1630.2(p). Under Title III, which applies to public accommodations, a higher education institution cannot discriminate against a student with a disability by failing to remove architectural barriers when such removal is readily achievable. 42 US § 12182(b)(2)(A)(iv). In other words, the institution does not have to be installed in a wheelchair ramp if it is not ready to do so. Institutions of higher education have a duty to provide accessible facilities for students and to provide reasonable accommodations for them in all programs and activities. Schools can satisfy this obligation by simply providing an auxiliary aid or service. 42 US § 12112(b)(2)(A).
Campus Safety, Premises Liability, and vicarious liability issues
In recent years, the legal responsibilities of universities to provide a safe environment for students and staff have come under increased scrutiny. The public expects campuses to be as safe as the communities surrounding them, and believe that institutions should bear responsibility when they fail to meet this expectation.
Among the campus safety issues that are most likely to result in liability for universities are efforts to prevent crime, as well as procedures for dealing with campus emergencies like sexual assault, fires, shootings and building security. In fact, recent legislation has expanded the circumstances when schools are subject to liability for student injuries. The Jeanne Clery Act requires institutions of higher education to train and equip campus security authorities; test their emergency notification systems; investigate complaints; post statistical data on campus; and develop a sexual violence policy. When institutions of higher education fail to observe the law and conduct a thorough investigation of a report of sexual violence, for example, they may be subject to both civil and administrative liability.
Higher Education: Admin Lawsuits and Employment Issues
Employment contracts for higher education personnel are a major source of dispute in all segments of collegiate institutions. Employment law issues include faculty contract claims, tenure disputes, layoff and reduction-in-force claims, faculty discipline matters, academic freedom claims, collective bargaining and fair representation claims involving faculty unions, and employment discrimination by race, gender, religion, disability or sexual orientation. The American with Disabilities Act of 1990 also applies, in some instances, to higher education personnel . There are many arbitrators, mediators and neutrals, in private practice and on the panels established by the American Association of University Professors, with experience in grievances involving the employment of faculty, academic administrators and other types of employees in the field of higher education. Lawyers for colleges and universities may practice employment law in most states in which they are located, as well as in federal courts, EEOC and other federal agencies, before state agencies, and arbitrators and mediators.