How to Avoid Getting Sued

When I first arrived at Columbia in 2008 to direct the Graduate School of Arts & Sciences Teaching Center, I asked many faculty members what topics would most benefit the doctoral and master’s students. The then chair of the Economics Department responded, “How not to get sued.”

So, among the very first workshops I offered was on precisely that topic.

I am not a lawyer, though I did take a number of courses at Yale Law School as a graduate student. So please don’t take the following comments as gospel or legal advice. Consider this food for thought.

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The session focused on eight subjects: academic freedom in the classroom, accommodating students with special needs, grading, intellectual property, fair use, letters of recommendation, sexual harassment and student privacy.

I suspect it’s time to revisit those topics.

Let’s begin with the issue of academic freedom.

There is general agreement on certain basic principles. For example, speech by professors in the classroom at public institutions is generally protected if the speech is “germane to the subject matter.”

However, the right to freedom of speech is not absolute if it compromises a student’s right to learn in a hostility-free environment. For example, some courts have held that a professor’s use of vulgar language is “not germane to the subject matter.” Some courts have held that instructors must avoid indoctrinating or proselytizing.

Students, too, have a right to academic freedom, including the right to free discussion, free inquiry and free expression. A major current source of controversy involves balancing students’ and faculty rights.

Professors are allowed to select readings to assign in their courses without having to provide “equal time” for every competing viewpoint, so long as this reflects a genuinely academic decision. Students do not have the legal right to demand that classes be viewpoint-neutral or “balanced.”

Also, an instructor may require a student to write a paper from a particular viewpoint, even if it’s a viewpoint with which the student disagrees, so long as the requirement serves a legitimate pedagogical purpose.

In general, the courts defer to the professional judgment of faculty to determine what is pedagogically appropriate in the college classroom so long as such academic decisions are not a pretext for some unlawful form of discrimination.

However, in today’s fraught environment, there are a number of areas that are subject to heated dispute.

One is the so-called heckler’s veto. Can students disrupt or shut down a discussion or presentation? Are hostile questions or interruptions or walkouts OK?

A second involves deliberate provocation. Do statements by an instructor that intentionally seek to incite rage among some students create a hostile or exclusionary learning environment, which is prohibited under federal laws and regulations? What about screening film clips or showing artworks that some students regard as blasphemous or obscene?

A third issue centers on academic fitness. Without a doubt, this concept, which is recognized in the AAUP’s discussions of tenure, has been widely abused in the past as a pretext for dismissing faculty members for their political views. And yet, this concept does imply an institution’s right to demand a certain level of academic rigor, much as scholarly journals are free to serve as gatekeepers. What are the circumstances that an institution can dismiss a faculty member (or fail to renew a contract) on grounds of unfitness and what procedures must be followed?

A second topic that I addressed involved accommodations. Some recent studies estimate that roughly a quarter or even more of today’s students have a disability that might require an academic accommodation.

Federal law requires public and private colleges and universities to provide the necessary services and support for students with special needs to participate in all campus activities and programs, whether these are academic or social. However, the students must notify and in some cases provide documentation of disability before they assert the need for an accommodation and must not wait until the last minute.

As an instructor, you have a responsibility to refer students who request an accommodation to the proper campus office. This office will meet with the student, review the required documentation and recommend an appropriate accommodation that does not alter the course’s academic standards or content.

You are required to make reasonable adjustments necessary to eliminate discrimination on the basis of disability. Typically, these involve:

• Assigning the student a note taker or tutor.
• Making the course readings available in alternative form, such as Braille, large print and audio tapes.
• Giving the student access to educational materials in advance, such as class syllabus and study guides.
• Providing sign language interpreting and real-time captioning services.
• Giving the student alternatives to the standard way of delivering an examination, such as extended time, taped tests, oral tests, an alternate test site, elimination of computer-scored answer sheets and use of a computer or spell-checking device for quizzes and exams.
• Providing the student with access to adaptive equipment such as closed-captioning devices, amplified telephone receivers, low-vision reading aids, tape recorders, Braille devices and computer enhancements.
• Giving the student the opportunity to make up quizzes, exams or assignments if the absence was disability related.
• Providing the student with preferential seating in the classroom.
• Extending the timeline for completion of specific courses or for the completion of certification or degree requirements.
• Giving the student permission to take less than full-time credit and still be eligible to receive financial aid.
• Providing foreign language course substitutions, such as the option to take foreign culture class instead of a foreign language

In recent years, at many institutions, the kinds of required accommodations have expanded in ways that some faculty regard as altering a class’s fundamental nature. One example at my institution is prohibiting a faculty member from calling on a student in a discussion class without advance warning. In some instances, the required accommodation—for example, those that allow a student to miss class—is exceedingly vague and provides the instructor with very little guidance.

A bigger issue is whether the institution is required to take affirmative steps—like a K-12 individualized educational program—to assist the student, insofar as possible, in developing strategies to better fulfill the demands of particular classes. My personal view is that campuses need to do much more to provide resources and support to help students develop skills that will prove useful after graduation.

A third issue involves grading.

In 2007, a paralegal seeking a bachelor’s degrees in legal studies and sociology at the University of Massachusetts filed a 15-count lawsuit in U.S. District Court after a teaching assistant graded a political philosophy class on a curve and turned the student’s A-minus into a C. The student contended that the university violated his civil rights and contractual rights and intentionally inflicted emotional distress.

The suit was ultimately dismissed. But cases like this one have struck fear in many instructors.

Evaluating a student’s performance is an integral part of higher education. But as grading has assumed heightened significance (for example, in determining eligibility for scholarships), grading disputes appear to have grown more frequent.

Even though lawsuits over grading are rare and almost never successful, it is still essential that grades not be arbitrary and capricious, excessively skewed, or reflect bias. Some courts have held that it is proper for an institution to insist that an instructor comply with a particular college or university grading policy (such as grading on a prescribed curve).

Other courts have ruled that there must be procedures in place for handling disputed grades and that an instructor must enforce grading standards evenhandedly. The American Association of University Professors recommends that grading appeals should be heard by faculty members in the department or closely related field and that the standard should be whether the faculty member used “inappropriate criteria” “in determining the grade” or “did not adhere to stated procedures or grading standards.”

Issue four involves who owns the intellectual property, including ownership of course materials, such as the syllabus, lectures, classroom handouts and class website, that instructors create as part of their academic responsibilities.

It is generally assumed that professors own the copyright to scholarly books and articles or creative works that they produce, even if they use university facilities and resources. Thus, any royalties flow to them. Lectures are also generally assumed to belong to the professor. Thus, companies are generally barred from selling lecture notes without the professor’s permission—though some do that, convinced that institutions will never sue them.

Work by students belongs to the students, and faculty members need the students’ permission to distribute their work.

Ownership of syllabi and online and distance education materials, however, is a gray area. In the absence of clear rules about the reuse of faculty-produced instructional materials, it’s essential that the faculty, through a union or senate, negotiate clear policies.

How about fair use of copyrighted materials? This is a highly contested topic that is more important than ever, given ready access to copyrighted film clips, artworks and music that instructors want to bring into the classroom.

There are special conditions—including criticism—in which the law allows for limited copying of copyrighted materials without the permission of the rights holder. However, the fair-use exemption is vague and unclear, depending on specific facts and circumstances. Under some circumstances, including satire, parody, negative and positive commentary, discussion triggers, illustration, and archiving, the use of copyrighted material could be legal.

In evaluating whether the use of material is covered by the fair-use doctrine, courts weigh four factors:

1. Whether the material is being used for commercial or educational and noncommercial purposes.
2. Whether the material is factual or informational or whether it is for primarily entertainment purposes.
3. The amount of material copied and whether the material constituted the “heart” of a particular item.
4. The effect upon the economic value of the copyrighted work.

In online courses, there must be measures in place to ensure that the copyrighted material is not accessible to students who are not enrolled in a particular class.

Here are some simple guidelines:

• Keep any excerpts from copyrighted material brief.
• Cite the source of any copyrighted materials.
• Use the material for specific instructional purposes.
• Get permission to use the materials—certainly from your own campus’s general counsel.

Very unfortunately, in my view, the courts struck down a negotiated settlement with many copyright holders that would have set up a payment scheme to compensate them for the educational use of their materials. So this remains a legally perilous area.

What about letters of recommendation? We’ve all heard the joke: that in letters of recommendation “good” means “mediocre,” “shy” means “socially dysfunctional,” “ambitious” means “overreaching,” and “solid” means “plodding” and “unimaginative.” There can be no doubt that for a number of reasons, including fear of defamation suits, hyperbole has become rampant and evasion and puffery abound in letters of recommendation.

Writing a letter of recommendation is an art. At stake is a letter writer’s credibility—and a candidate’s career prospects. Recipients of letters hope for candor and honesty but often feel that they must read between the lines and look for code words.

An effective letter discusses a candidate’s research, teaching, leadership potential and impact on the field. It assesses strengths and weaknesses. But given the high stakes involved, many academics resort to euphemisms. This is the case even though very few letter writers have ever been sued.

Still, there are things to watch out for. It is one thing to discuss a candidate’s scholarly research and teaching, but whether you should discuss a candidate’s personality or collegiality is unclear. In instances where you might refer to a candidate’s ethnicity or special needs, it is essential to obtain the candidate’s consent.

Confidentiality is a question mark. Some universities (like those in the University of California system) operate under open-records laws that allow individuals to read letters of recommendation, except for the letterhead, signature and identifying information below the signature. And even in instances where letters are not subject to open-records requests, information frequently seeps out.

My advice is to be frank and forthright with a student about the letter that you intend to write and any reservations or concerns that you might express.

I can only deal very briefly here with one of the most pressing legal issues in the academy: sexual harassment.

Sexual harassment is not confined to a quid pro quo—for example, an exchange of sexual favors for a higher grade. Any conduct that unreasonably interferes with an individual’s academic work or that creates an intimidating, hostile or offensive academic environment can constitute sexual harassment.

Thus, abusive speech, lewd or sexually graphic language, gossip, pressure for dates, unwanted sexual looks or gestures, unwanted touching, and materials of a sexual nature in the classroom all may create a hostile learning environment.

If you receive a complaint or hear even indirectly about a problem in your area that might reasonably be construed as sexual harassment or discrimination, in most cases you are required to take timely action. You may not ignore it.

Be aware of the following:

1. Harassment does not have to be directed at a particular individual. It is sufficient to create a hostile learning environment.
2. What is harmless joking to one person may be grossly offensive to another. Be sensitive to others.
3. Intent is not relevant in determining whether or not a behavior is sexual harassment. All that matters is the impact of the behavior on the learning environment.
4. Avoid touching someone else unless you are sure it is welcome.
5. Retaliation after someone makes a claim of sexual harassment is strictly prohibited.
6. Certain forms of academic discourse are protected if they are germane to the course. This might include reading and discussing literary works or student essays that contain material that might otherwise, under other circumstances, be considered offensive.

Are consensual romantic relationships between instructors and students permissible?

Various colleges and universities have adopted different approaches to romantic relationships between instructors and students. Some have banned such relationships entirely. Others prohibit relationships where there is a supervisory relationship. Still others strongly discourage such relationships; some require such relationships to be disclosed to the instructor’s supervisor.

The AAUP has adopted the following policy:

Let’s turn next to the issue of student privacy.

What information can’t an instructor reveal? An instructor can’t publicize a student’s grades. Nor, in most cases, can you discuss a student’s academic performance with the student’s parents.

The Family Educational Rights and Privacy Act provides that identifiable information from student education records cannot generally be released to any third party without the consent of the student.

In Owasso Independent School District v. Falvo (2002), the Supreme Court ruled that the common practice of asking students to exchange papers and grade each other’s work did not constitute a violation of FERPA. The court held that peer grading is a legitimate pedagogical tool, allowing students to learn from the grading process. Thus, faculty may use peer grading in the classroom without FERPA concerns.

But can you intercede with troubled students? Who, if anyone, can you inform if you suspect that a student has serious emotional problems or exhibits signs of potentially dangerous behavior, while still respecting student privacy?

The answer: you must follow your institution’s policies and only share your concerns with individuals whom your campus has identified as responsible for addressing such issues. In other words, you mustn’t discuss your specific concerns with colleagues.

There are many other academic legal issues that I am unable to discuss here for want of space, such as due process in handling suspected cases of academic dishonesty or misconduct. Let’s save those issues for another occasion.

A few words of caution: the judicial system’s willingness to defer to professorial prerogatives has diminished. There are many judges today who are not much more likely to respect instructors’ professional autonomy than are students.

Here’s another cautionary note: court decisions involving college teaching and professorial rights tend to be highly unpredictable. They also vary widely across jurisdictions.

In such an environment, it’s best to behave in a professional manner. Avoid flamethrower language. Do not call out individual students publicly. Respect diverse opinions. Be transparent about your learning objectives, instructional and assessment strategies, and grading policies. And, above all, create classes according to the principles of universal design that give all students equal opportunities to succeed.