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Legal Issues for Advisors: A Primer

Authored by: Stephen E. Robinson
2004
 

Within the context of the modern campus, few positions are as potentially problematic as that of the academic advisor. The close and frequent contact with students can prove to be both rewarding and simultaneously challenging. Prudent advisors keep their dual role as both student resource and representative of their institution in mind at all times when working with students. Failure to do so can lead to difficult circumstances. As we live in a litigious society, it is always possible that wwll-intentioned advisors can find themselves facing situations that could have been avoided. An understanding of basic legal concepts is an integral, yet often unknown, part of the practice of academic advising that can assist advisors in avoiding potential pitfalls.

One of the most basic concepts that advisors should understand is due process rights. Due process means in simple terms "what is fair" (Miles, 2002). Due process rights are guaranteed by the U.S. Constitution in the 5th and 14th amendments specifically. But what exactly are due process rights? Who is entitled to them? And under what circumstances are they required?

Due process is best understood as a mechanism governing the manner in which disputes between citizens and their government should be handled. They bind the representative of the government to a particular set of actions that must be followed in a step by step fashion.The gateway to due process always is keyed into the actions of a state officer (Miles, 2001). All advisors at public institutions, because they are employees of a state or other governmental agency, are considered state officers. Therefore, employees at public institutions are required to provide due process to students while no such requirement exists for their colleagues at private institutions (Miles, 2001). This is an important distinction to keep in mind.

Due process is divided into two elements (Miles, 2001). The first is called substantive due process. Under substantive due process, all policies, procedures and rules must be fair by any independent standard. They cannot in any way be arbitrary or capricious. The second element is called procedural due process. Procedural due process means that the policies of an institution are carried out in an equitable manner. Policies cannot be interpreted in different ways for different students who find themselves in identical circumstances. Both elements must be present for due process to be properly provided. A student can claim a violation of their due process rights if either element is not present in an institution's policies and practices.

How do we decide when students are entitled to due process? Not all activities by a state officer necessarily require due process. Those that do are predicated in a student's interest in the outcome of a dispute. In order for a student to be entitled to due process, they must have either a property or liberty interest at stake (Miles, 2001). A property interest is a quantifiable benefit derived from an action. An example of a property interest might be earning a degree upon successful completion of all requirements. A student who follows and meets all requirements set out in a university's catalogue would have a property interest in the institution awarding the degree.   An institution would be required to provide due process in these instances. A liberty interest is based on a student's ability to leave a campus freely without interferencefrom the institution. An example of this would be actions of a university or college that make it impossible for a student to transfer to complete a degree elsewhere or perhaps find employment after leaving. Due process comes into play when the activities of an institution affect students in such a way that they fall into one of these two categories.

To provide due process to a student, Miles (2001) delineates three steps that must be followed. First, representatives of the institution must give notice of an alleged violation of policy. Secondly, the institution must offer a hearing where a student can refute any charges made.   Finally, an explanation of the decision made must be given. To skip one of these steps is to abrogate a student's due process rights.

Academic advisors should be cognizant of the ramifications of due process for our practice. In our day-to-day work, situations arise that require due process be applied. Consider decisions regarding reasonable academic progress standards as they relate to financial aid eligibility. Certainly an academic advisor involved in decisions or appeals of aid should offer due process to a student about to lose eligibility for future funding. They have a property interest in continuing to receive aid.   Admission to selective professional degree programs could also require due process. These are but two potential areas in which advisors could be involved with student due process. By understanding the concept involved in due process, advisors can avoid inadvertently denying a student rights that they are guaranteed.  This can help protect an advisor from becoming embroiled in difficult legal circumstances.

Another important area for advisors is the law of agency. The law of agency essentially means that actions of an agent of a principal can bind that principal (Miles, 2001). A principal for our purposes is the educational institution. An agent of the principal can be academic advisors. At the heart of this relationship is the fact that we as advisors can bind our institutions to certain actions such as awarding of degrees on the basis of our actions. The standard that seems to emerge in recent court cases has centered on whether the agents (advisors) were acting within the scope of their professional duties (Zirkel, 2001). Did the advisor overstep the scope of his or her duties? This is how the institution can be held responsible for promises and advice made by their agents. Advisors should be aware of the implications of this for their practice.   We should make a conscious effort to avoid speaking for areas outside our scopes. For example, questions about regulations governing international students or student athletes might be more appropriately handled by another campus office since students may take our vague assurance on a matter as official.  The implications for the advisor are clear here: stick to what you know (Stone, 2002)! It is very easy to fall into the trap of predictions that we all know, as advisors, are dangerous.

For advisors, one of the most troubling recent incidents is a court case decided in Iowa. In 1995, Bruce Sain, was a senior at Jefferson High School in Cedar Rapids, Iowa (Zirkel, 2001).  Mr. Sain was offered and accepted a full scholarship to play basketball at Northern Illinois University (NIU). Unfortunately for Mr. Sain prior to enrolling at NIU, he received a letter from the NCAA Clearinghouse alerting him that he was short in the number English credits required to participate in intercollegiate athletics. Therefore he lost eligibility and consequently his scholarship to play basketball (Stone, 2002).

To fully understand Mr. Sain's predicament, we must return to the course decisions he made in high school. Sain actually completed another English course that did not satisfy this requirement.Mr. Sain had consulted with his high school guidance counselor concerning his English course decisions (Zirkel, 2001). The counselor suggested that he drop his current English course and enroll in another English course. The counselor explained that this was the first time the course was being offered at Jefferson High School and thus the course had yet to be approved by the NCAA.  However, the counselor felt confident that the course would be approved as it had been accepted for other area schools (Stone,2002).Ultimately, the course was not submitted by Jefferson High School to the NCAA for approval. This left Sain with too few English credits to meet NCAA regulations, and thus he was unable to play at NIU and retain his scholarship (Zirkel, 2001).

Mr. Sain turned to the courts for help. Mr. Sain sued the Cedar Rapids School District. He claimed negligence in that the school district had not included the course on the list submitted for NCAA approval. Secondly, he claimed that his counselor acted in negligent misrepresentation by telling him that the course would be approved (Zirkel, 2001). Negligence is a tort that results when one breaches a duty to another person. A tort is more or less a foreseeable personal injury. This injury can be emotional, physical or mental (Miles, 2001). For negligence to have occurred there also has to be a standard of care or foresee ability. This centers on what a reasonable person could have known or expected to happen (Miles, 2001). So could the guidance counselor have known that this could happen?

The trial court rejected the suit. This follows the traditional stance that most courts are reluctant to intervene in academic matters. This court's opinion was that this claim amounted to educational malpractice (Zirkel, 2001). Sain appealed to the Iowa Supreme Court, which remanded the case or sent it back to the trial court to hear.   It agreed with the lower court in that the school district's failure to include the course on the list submitted to the NCAA was not negligence. Negligence in this case only applies to the failure to disclose information not the failure to provide as would be the case in submitting a course for NCAA Clearinghouse review (Zirkel, 2001).However, the majority opinion compared academic advising to the professions of accounting and law; the similarity being that these two professions provide advice that is relied upon to prevent injury. The majority of the court thought academic advising very similar to these other professions in this regard (Zirkel, 2001). The Iowa Supreme Court minority opinion noted that this case, "rather than 'encouraging sound academic guidance, it will discourage advising altogether.' (Zirkel, 2001)". Rather than go back to trial, the Cedar Rapids School District settled out of court with Mr. Sain (Stone, 2002).

The decision in this case has implications for advisors since it was a break with precedent in that the Iowa court viewed an advising error as significant enough to be a possible tort (Miles, 2002). The court's decision is critical in that it clearly links academic advising, in terms of its importance, to accounting and law. While always of crucial importance, advising is not commonly viewed in this manner by authorities outside of academe.  This new standard has serious implications for advisors. The traditional role our advice plays potentially takes on a new, and potentially unwelcome gravity.   It is also important to note that the student in this case could have sued his guidance counselor personally, but chose not to do so.

The role of the academic advisor is at the heart of any college campus. To be truly effective while at the same time protecting ourselves, we must be aware of the legal implications of our work and the changing environment in which we operate. By seeking the advice of campus experts, including the counsel's office, advisors can safeguard themselves against potential errors.

Steve Robinson

West Virginia University

Assistant University Registrar

References:

Miles, A. S. (2001).   College Law (3 rd Edition).   Tuscaloosa: Sevgo Press.

Miles, A. S. (2002).   Course notes from AHE 530 College and University Law

Stone, C.   (2002).   Negligence in academic advising and abortion counseling: court

rulings and implications. Professional School Counseling, 6 (1), 28-35.

Zirkel, P.   (2001).   Courtside: Ill advised. Phi Delta Kappan, 83 (1), 98-99.

Additional resources:

FERPA

Due Process for Students

American Civil Liberties Union (ACLU) Students' Rights 

FERPA and social media 

FERPA revisions podcast PowerPoint February 2009

FindLaw Educational Site

• Resource Weblinks dealing with legal issues in advising
• Read More About It!
  • Academic advising: A comprehensive handbook - second edition
  • Legal issues in academic advising - NACADA Webcast on CD
  • The New Advisor Guidebook- NACADA Monograph - M16

Please note that legal advice must be tailored to the specific circumstances of each case; therefore this information will not substitute for advice from competent counsel. NACADA does NOT provide legal counsel nor answer legal questions.

Cite this using APA style as:

Robinson, S. (2004).Legal issues for advisors: A primer.Retrieved -insert today's date- from the NACADA Clearinghouse of Academic Advising Resources website: 
http://www.nacada.ksu.edu/Resources/Clearinghouse/View-Articles/Legal-issues-primer.aspx