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Legal Issues in the Classroom

Appalachian College Association Teaching and Learning Institute
June 4, 2003
Donna Euben, Staff Counsel

I. Free Speech Issues in Higher Education

A. Institutional and Individual Academic Freedom

Federal courts have referred to the academic freedom of educational institutions as well as of
individuals within those institutions (e.g., students, faculty members).

There are "four essential freedoms of a university--to determine for itself on academic grounds
who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring).

"Our nation is deeply committed to safeguarding academic freedom, which is of transcendent

value to all of us and not merely to the teachers concerned. That freedom is therefore a special
concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over
the classroom. . . The classroom is peculiarly the 'marketplace of ideas.' The nation's future
depends upon leaders trained through wide exposure to that robust exchange of ideas which
discovers truth 'out of a multitude of tongues, [rather] than through any kind of authoritative
selection.'" Keyishian v. Board of Regents of the Univ. of New York, 385 U.S. 589, 603 (1967).

See also:

"Academic freedom thrives not only on the robust and uninhibited exchange of ideas between
the individual professor and his students, but also on the 'autonomous decisionmaking [of] . . .
the academy itself.'" Parate v. Isibor, 868 F.2d 821, 826 (6th Cir. 1989) (quoting Regents of the
Univ. of Michigan v. Ewing, 474 U.S. 214, 226 & n. 12 (1985)).

Academic freedom includes "the freedom of the individual teacher (or in some versions--indeed
in most cases--the student) to pursue his ends without interference from the academy." Piarowski
v. Prairie State College, 759 F.2d 625, 630 (7th Cir. 1985).

But see:

"Our review of the law . . . leads us to conclude that to the extent the Constitution recognizes any
right of 'academic freedom' above and beyond the First Amendment rights to which every citizen
is entitled, the right inheres in the University, not in individual professors . . . ." Urofsky v.
Gilmore, 216 F.3d 401 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001).

B. Academic Freedom of Faculty Members and Students

Academic freedom rights are not coextensive with First Amendment rights, although the courts
have recognized a relationship between the two. The First Amendment protects from regulation
by public institutions, including public colleges and universities, expression on all sorts of topics
and in all sorts of settings. Academic freedom, on the other hand, addresses rights within the
educational contexts of teaching, learning, and research both in and outside the classroom--for
individuals at private as well as at public institutions. Accordingly, in addition to the First
Amendment and some state laws, academic freedom has also been recognized and protected in
higher education by academic policy, practice, and contracts. Academic freedom rights are often
explicitly incorporated into faculty handbooks, which are sometimes held to be legally binding
contracts. Academic freedom rights may also be protected in faculty collective bargaining
agreements and in publications applicable to students.
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1. Faculty: AAUP's 1940 Statement of Principles on Academic Freedom and Tenure (excerpted
below) is the seminal statement on academic freedom for faculty in higher education. It has been
endorsed by over 170 scholarly and professional organizations and is incorporated into many
college and university faculty handbooks.

Teachers are entitled to full freedom in research and in the publication of the results, subject to
the adequate performance of their other academic duties. . .

Teachers are entitled to freedom in the classroom in discussing their subject, but they should be
careful not to introduce into their teaching controversial matter which has no relation to their
subject.

College and university teachers are citizens, members of a learned profession, and officers of an
educational institution. When they speak or write as citizens, they should be free from
institutional censorship or discipline, but their special position in the community imposes special
obligations. As scholars and educational officers, they should remember that the public may
judge their profession and their institution by their utterances. Hence they should at all times be
accurate, should exercise appropriate restraint, should show respect for the opinions of others,
and should make every effort to indicate that they are not speaking for the institution.

2. Students: The 1967 Joint Statement on Rights and Freedoms of Students (excerpted below)
discusses the free expression rights of students:

Freedom to teach and freedom to learn are inseparable facets of academic freedom. The freedom
to learn depends upon appropriate opportunities and conditions in the classroom, on the campus,
and in the larger community. Students should exercise their freedom with responsibility. . .

Students should be free to take reasoned exception to the data or views offered in any course of
study and to reserve judgment about matters of opinion, but they are responsible for learning the
content of any course of study for which they are enrolled. . .

Students and student organizations should be free to examine and discuss all questions of interest
to them and to express opinions publicly and privately. . . .

As constituents of the academic community, students should be free, individually and

collectively, to express their views on issues of institutional policy and on matters of general
interest to the student body. . .

The student press should be free of censorship and advance approval of copy, and its editors and
managers should be free to develop their own editorial policies and news coverage. . .

College and university students are both citizens and members of the academic community. As
citizens, students should enjoy the same freedom of speech, peaceful assembly, and right of
petition that other citizens enjoy and, as members of the academic community, they are subject
to the obligations which accrue to them by virtue of this membership.

C. Faculty Academic Freedom in the Classroom: Some Recent Cases

Recent challenges to the academic freedom of students and faculty members in higher education
include (among others), restrictions on teaching methods, course content, and applications of K-
12 precedent to the college and university setting. Generally, speech by professors in the
classroom is protected under the First Amendment and under the professional concept of
academic freedom if the speech is "germane to the subject matter." See, e.g., Kracunas v. Iona
College, 119 F.3d 80, 88 & n. 5 (2d Cir. 1997) (applying the "germaness" standard to reject
professor's academic freedom claim because "his conduct [could not] be seen as appropriate to
further a pedagogical purpose," but noting that "[t]eachers of drama, dance, music, and athletics,
for example, appropriately teach, in part, by gesture and touching"); see also AAUP, 1970
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Interpretive Comments, REDBOOK at 5 ("[T]he intent of [the 1940 Statement] is not to

discourage what is controversial [but] to underscore the need for teachers to avoid persistently
intruding material which has no relation to their subject matter.").

1. Teaching Methods

Are faculty members able to select and use pedagogical methods they believe will be effective in
teaching the subject matter in which they are expert? On the one hand, faculty members are
uniquely positioned to determine appropriate teaching methods. On the other hand, faculty
members may engage in unprotected speech in the classroom, such as religious proselytizing or
sexual harassment.

Hardy v. Jefferson Community College: An African-American student and a "prominent citizen"

complained about the allegedly offensive language used by Kenneth E. Hardy, an adjunct
communications professor, in a lecture on language and social constructivism in his
"Introduction to Interpersonal Communication" course. The students were asked to examine how
language "is used to marginalize minorities and other oppressed groups in society," and the
discussion included examples of such terms as "bitch," "faggot," and "nigger." The college did
not renew Professor Hardy's appointment, and he sued. The Sixth Circuit found the topic of the
class—"race, gender, and power conflicts in our society"—to be a matter of public concern and
held that "a teacher's in-class speech deserves constitutional protection." The court opined that,
"[r]easonable school officials should have known that such speech, when it is germane to the
classroom subject matter and advances an academic message, is protected by the First
Amendment." 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002).

Bonnell v. Lorenzo (Macomb Community College): The Sixth Circuit upheld the college's
suspension of John Bonnell, a professor of english, for creating a hostile learning environment. A
female student sued the professor, alleging that he had repeatedly used lewd and graphic
language in his English class. The court stated that, "[w]hile a professor's rights to academic
freedom and freedom of expression are paramount in the academic setting, they are not absolute
to the point of compromising a student's right to learn in a hostile-free environment." The court
found the professor's use of vulgar language "not germane to the subject matter." 241 F.3d 800
(6th Cir.), cert. denied, 534 U.S. 951 (2001).

Vega v. Miller (New York Maritime College): Edward Vega, a former non-tenure-track professor
of English, sued the college, which did not reappoint him because he led an "offensive"
classroom "clustering" (or word association) exercise in a remedial English class for "pre-
freshmen" college students during summer school. The clustering exercise, which "is intended to
help students reduce the use of repetitive words in college-level essays," involves students
selecting a topic, then calling out words related to the topic, and then grouping similar words into
"clusters." In Professor Vega's summer 1994 class, the students selected the topic of sex, and the
students called out a variety of words and phrases, from "marriage" to "fellatio." None of the
students or their parents complained. Administrators did not reappoint Vega, arguing that his
conduct "could be considered sexual harassment, and could create liability for the college." Vega
raised a number of claims, including that the nonreappointment violated his First Amendment
right of academic freedom. The administrators argued that they were entitled to qualified
immunity. The federal appellate court ruled that the administrators were entitled to qualified
immunity because "no decision before 1994 . . . had clearly established that conduct of the sort
that Vega undisputedly took violated a teacher's First Amendment rights." In so ruling, the court
clearly stated: "Since this episode occurred seven years ago and involves a highly unusual set of
circumstances, unlikely to be repeated, we see no reason to rule definitively on whether the
Defendants' action was unlawful. . . . [W]e rule only that on the state of the law in 1994, the
Defendants could reasonably believe that in disciplining Vega for not exercising his professional
judgment to terminate the episode, they were not violating his clearly established First
Amendment academic freedom rights." 273 F.3d 460 (2d Cir. 2001), cert. denied, 535 U.S. 1097
(2002).
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2. Course Content

The Statement on Government of Colleges and Universities provides that faculty have "primary
responsibility for such fundamental areas as curriculum, subject matter and methods of
instruction . . ." REDBOOK at 221. "Faculty will always have the best understanding of what is
essential in a field and how it is evolving." Poskanzer, THE FACULTY at 91. That is why
institutions appoint such scholars to teach. Moreover, the expertise of a professor and a faculty
department helps insulate administrators and trustees from political pressures that may flow from
particularly controversial courses. See, e.g., David L. Wheeler, "Fort Lewis College Pulls Course
on 'Poetics of Porn'," Today's News (Dec. 3, 2001) (suspending the listed seminar pending a
"special session of the curriculum committee" to review the course for "academic integrity," and
reporting that "some state politicians had expressed interest in reviewing all special-topics
courses at all state institutions").

Axson-Flynn v. Johnson (University of Utah): Christina Axson-Flynn is a former student at the

University of Utah. She is also a member of the Church of Latter-Day Saints. Axson-Flynn has
sued her university theater department professors for violating her right to free speech and free
exercise of religion under the First Amendment by requiring, as part of the curriculum, that
students perform in-class plays despite her religious objections. As a part of the theater
department curriculum, the professors assert that "it is an essential part of an actor's training to
take on difficult roles, roles which sometime[s] make actors uncomfortable and challenge their
perspective." The student alleges that she told the theater department before being accepted into
the "Actor Training Program" that she refused to "take the name of God or Christ in vain" or use
certain "offensive" words. The district court ruled against her. The court hypothesized that if the
curriculum requirements were to constitute a First Amendment violation, "then a believer in
'creationism' could not be required to discuss and master the theory of evolution in a science
class; a neo-Nazi could refuse to discuss, write or consider the Holocaust in a critical manner in a
history class." The court found "reasonable for an acting program faculty to use such exercises to
foster an actor's ability to take on roles they might find disagreeable." Axson-Flynn appealed the
ruling to the Tenth Circuit, and oral argument was heard in November 2002. We await a court
decision. 151 F. Supp. 2d 1326 (D. Utah 2001), appeal pending No. 01-4176 (10th Cir. 2002).
AAUP's amicus brief in this case is available in .pdf format.

Yacovelli v. Moeser (University of North Carolina): On August 20, 2002 the university
scheduled a schoolwide discussion for all new students based on the reading assignment,
"Approaching the Qur'an: The Early Revelations," by Michael Sells, a professor at Haverford
University. Anonymous students and named individual taxpayers sought to halt the summer
program, arguing that the assignment of the book violated the Establishment Clause, which
provides for the separation of church and state, under the "guise of academic freedom, which is
often nothing other than political correctness in the university setting." The university defended
itself, asserting that the program was not endorsing or promoting a particular religion, and that if
the court issued an injunction, it would chill academic freedom, because "the decision was
entirely secular, academic, and pedagogical." The federal district court ruled in favor of the
school, denying the plaintiffs' request to stop the reading sections: "there is obviously a secular
purpose with regard to developing critical thinking, [and] enhancing the intellectual atmosphere
of a school for incoming students." The day of the reading program, the federal appellate court
upheld the trial court's ruling. Case No. 02-CV-596 (U.S. District Court, Middle District of North
Carolina, Aug. 15, 2002), aff'd, Case No. 02-1889 (4th Cir., Aug. 19, 2002); see Donna R.
Euben, "Curriculum Matters," Academe: Bulletin of the American Association of University
Professors, 86 (Nov./Dec. 2002).

Linnemeir v. Board of Trustees (Indiana University-Purdue University, Fort Wayne (IPFW)):

Some taxpayers and Indiana state legislators sought to compel IPFW to halt the campus
production of a controversial play, Terrence McNally's Corpus Christi. The Theatre Department
faculty committee had unanimously approved the selection of the play as the senior project of a
drama student. The plaintiffs alleged that the play was an "undisguised attack on Christianity and
the Founder of Christianity, Jesus Christ," and, therefore, the performance of the play on a public
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university campus violated the separation of church and state under the Establishment Clause of
the First Amendment. The Seventh Circuit denied the plaintiffs' request for a stay pending their
appeal from the district court's refusal to grant a preliminary injunction. The majority opined:
"Classrooms are not public forums; but the school authorities and the teachers, not the courts,
decide whether classroom instruction shall include work by blasphemers." The opinion
continued: "Academic freedom and states' rights, alike demand deference to educational
judgments that are not invidious . . . ." 260 F.3d 757 (7th Cir. 2001); see Donna R. Euben, "The
Play's The Thing," Academe: Bulletin of the American Association of University Professors, 93
(Nov.-Dec. 2001). AAUP's amicus brief in this case is available in .pdf format.

Edwards v. California University of Pennsylvania: Dilawar M. Edwards, a tenured professor in

media studies, sued the administration for violating his right to free speech by restricting his
choice of classroom materials in an educational media course. The classroom materials
emphasized the issues of "bias, censorship, religion and humanism." The department had voted
to use an earlier version of the syllabus for the introductory course. Thus, Edwards was teaching
from a non-approved syllabus. The court declined to review the case under the standard of
whether the professor's course content was "reasonably related to a legitimate educational
interest" because "a public university professor does not have a First Amendment right to decide
what will be taught in the classroom." The fact that Edwards' departmental colleagues approved a
syllabus that Edwards declined to use seems to have contributed to the court's deference to the
academic decision of the institution. Poskanzer, THE FACULTY at 89 (observing that "at some
level the decision reflects deference to (collective) academic judgment," but that such "a
consensus is always easier to obtain in opposition to unpopular or unconventional ideas"). 156
F.3d 488 (3rd Cir. 1998), cert. denied, 525 U.S. 1143 (1999).

Southern Christian Leadership Conference v. Louisiana Supreme Court (Tulane Environmental

Law Clinic): The Fifth Circuit upheld Louisiana Supreme Court Rule XX that restricted the types
of community groups that may be represented by law clinics, and prohibited law school clinics
from representing "solicited" clients. Seemingly the rule had been amended in response to the
Tulane law clinic's successful efforts in assisting a local community group to defeat a plan to
build a plastics plant in its neighborhood. A number of plaintiffs, including professors and
students, challenged the rule. They alleged, in part, that the rule violated the academic freedom
of professors to teach and students to learn. Amici, including the AAUP, CLEA and AALS,
argued in its joint brief that clinicians have a distinct form of academic freedom, and that
academic freedom is not limited to the four walls of a classroom. The Fifth Circuit ruled that the
limitation on the types of clients law clinics could represent did not "implicate any speech
interests," and the solicitation restrictions did not violate the plaintiffs' rights of free speech: "At
most, Rule XX indirectly discourages speech by refusing the educational experience of acting as
an attorney in a particular matter to unlicensed student practitioners in clinics whose members or
employees engaged in solicitation of that matter." In so ruling, the Fifth Circuit noted that the
impact of the court's rule "on the educational experience is far from extreme," even though the
court acknowledged that "the clinics themselves will either be forced to change their educational
model or to refrain from soliciting particular clients." In the end, however, "this minimal impact
on the clinics" was not suppressive. See Jonathan R. Alger, "Academic Freedom in the Real
World," Academe: Bulletin of the American Association of University Professors, 119 (Mar.-
Apr. 2000). 252 F.3d 781 (5th Cir. 2001).

II. Sexual Harassment Issues

A. Legal Standards of Sexual Harassment

Sexual harassment is a form of sex discrimination as recognized under laws such as:

1. Title VII of the Civil Rights Act prohibits sex discrimination in the terms and
conditions of employment.
2. Title IX of the Education Amendment prohibits sex discrimination with regard to
educational programs and activities (applies most frequently to students).
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3. State anti-discrimination laws also prohibit gender discrimination, including

sexual harassment.

B. Some Additional Points

 Harassment must be "on the basis of sex," not sexual orientation (e.g., "gay-
bashing" is not covered). Sexual harassment may, however, involve individuals of
the same sex (e.g., professor continually propositions same-sex student for sexual
favors). See Onacle v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)
(finding actionable same-sex harassment under federal Title VII law).

 Although most institutional sexual harassment policies deal with "sexual

conduct," nonsexual, gender- based harassment may also constitute sex
discrimination (e.g., professor who continually berates female students as being
"stupid in math").
 The same types of standards applied to sexual harassment are also used by courts
to address harassment on the basis of race or other protected categories.
 Sexual harassment must also be unwelcome.

C. Sexual Harassment Categories

The law categorizes two types of sexual harassment:

1. Quid pro quo: This type of sexual harassment occurs when a threat to the terms or conditions
of employment, or educational benefits, which are conditioned on the performance of sexual
favors. It creates an implied contract based on a power relationship. Accordingly, perpetrators
must be agents or employees with some authority from the institution. The institution is
automatically liable for such harassment.

 Such advances or requests are made under circumstances implying that

one's response might affect academic or personnel decisions that are
subject to the influence of the person making the proposal. AAUP, Sexual
Harassment: Suggested Policy and Procedures for Handling Complaints,
POLICY DOCUMENTS & REPORTS 209.

2. Hostile Environment: An institution has a duty to provide a nondiscriminatory work or

learning environment. A hostile academic environment occurs when harassment is sufficiently
severe, pervasive or persistent so as to limit or interfere with the terms and conditions of
employment or educational benefits. A hostile environment can be created by anyone involved in
a university program or activity--administrators, faculty members, students, and even guests. For
a university to be liable for such harassment, it must generally receive some form of notice of the
harassment and have failed to respond to it in a timely fashion.

"Mere offensiveness" is not enough to constitute sexual harassment.

 Such speech or conduct is directed against another and is either abusive

or severely humiliating, or persists despite the objection of the person
targeted by the speech or conduct; or
 Such speech or conduct is reasonably regarded as offensive and
substantially impairs the academic or work opportunity of students,
colleagues, or co-workers. AAUP, Sexual Harassment: Suggested Policy
and Procedures for Handling Complaints, POLICY DOCUMENTS &
REPORTS 209 (2001 ed.).

In determining whether sexual harassment is severe, pervasive or persistent under this legal
standard, courts consider the following factors ("totality of circumstances" test):
a. The nature, scope, frequency, duration, and location of incidents;
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b. The identity, number, and relationships of persons involved;

c. The perspective of a "reasonable person" of the same age and
gender; and
d. The nature of the higher education context and the educational
mission

Types of conduct that may (but do not always) constitute or contribute to sexual harassment:

a. Verbal: unwanted sexual teasing, jokes, remarks, or questions;

unwanted comments on appearance; name-calling of a sexual or
sex-based nature; pressure for dates or sexual favors.
b. Physical: unwanted sexual looks or gestures, unwanted deliberate
touching, actual or attempted rape or sexual assault.
c. Written: unwanted suggestive notes or memos, pornographic
material, or other materials of a sexual nature in the workplace.
d. Gossip: starting and spreading rumors about a person's sexual
habits.

Henrichsen v. Ball State University: A female student who was majoring in computer science
sued her school for sexual harassment. She alleged that her professor in the computer science
department and also a resident of the student's housing complex on campus left notes and flowers
at the door to her residence. He first left them as an "anonymous admirer." She identified him,
and then he continued to send her notes and flowers for two more days. She then informed the
professor to stay away from her in a no-trespass letter, and he ceased contact with her. The
federal district court ruled that "this brief series of unwanted, perhaps inappropriate
communications from [the professor], however uncomfortable for [the student], would not be
perceived by a reasonable person as severe, threatening, or humiliating." The court declined to
rule that this "relatively isolated, non-severe misconduct" as creating a hostile environment. 2003
U.S. Dist. LEXIS 3710 (S.D. Ind., March 12, 2003).

Hayut v. State University of New York: A female student in a professor's international politics
course accused him of sexual harassment. The student alleged that the professor harassed her by
referring to her as "Monica Lewinsky," and, according to the court, "making the following
comments in front of the entire class: 'How was your weekend with Bill?', "Be quiet, Monica. I
will give you a cigar later,' and 'You are wearing the same color lipstick that Monica wears.'"
While the court found the professor's conduct "highly offensive and obviously inappropriate," it
found that conduct only "sporadic and infrequent" and, therefore, insufficient to establish a
hostile learning environment. In so ruling, the court found that the professor's conduct did not
interfere with the student's "educational progress" because she maintained the same grade point
average at SUNY New Paltz as she had before (at a community college) and after (Pace
University). 217 F. Supp. 2d 280 (N.D.N.Y. 2002).

D. Free Expression and Freedom from Harassment

The Supreme Court has opined that sexual harassment can be distinguished from other behavior
using "common sense, and an appropriate sensitivity to social context." In higher education, "an
appropriate sensitivity to social context" requires recognition of the mission of a college or
university as distinct from other workplaces, which include close working and mentoring
relationships that often blur the lines between academic and social life. Jonathan Alger, "Love,
Lust and the Law: Sexual Harassment in the Academy," Academe: The Bulletin of the American
Association of University Professors 34 (Sept.-Oct. 1998).

In higher education, the educational benefits protected by law include academic freedom.
Academic freedom permits faculty members to use a wide variety of teaching techniques, and
faculty and students to engage in the free and open exchange of ideas:
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If [sexual harassment] takes place in the teaching context, it must also be persistent, pervasive,
and not germane to the subject matter. The academic setting is distinct from the workplace in
that wide latitude is required for professional judgment in determining the appropriate content
and presentation of academic material.

AAUP, Sexual Harassment: Suggested Policy and Procedures for Handling Complaints,
POLICY DOCUMENTS AND REPORTS 209 (2001 ed.).

The U.S. Department of Education in its Title IX policy guidance on sexual harassment of
students recognizes the need for educational institutions to "formulate, interpret, and apply
[their] rules so as to protect academic freedom and free speech rights." Fed. Reg. 62 (March 13,
1997): 12034, 12045-6.

The Department provides examples of protected academic discourse, even when that discussion
may offend individuals. One example of protected discourse involves reading and discussion in a
college-level creative writing course in which the professor's required reading list "includes
excerpts from literary classics that contain descriptions of explicit sexual conduct, including
scenes that depict women in submissive and demeaning roles," and student essays "which are
read in class . . . [some of which] contain sexually derogatory themes about women." Fed. Reg.
62 (March 13, 1997): 12034, 12045-6.

Cohen v. San Bernardino Valley College: A student in Professor Cohen's remedial English class
complained of the professor's use of vulgarities and obscenities in the class. The court found that
the institution failed to give the professor warning about the sexual harassment policy; the policy
delegated resolution of such complaints to "low level officials . . . on an ad hoc and subjective
basis, with the attendant dangers of arbitrary and discriminatory application"; and the "vague
policy discourages the exercise of first amendment freedoms." The federal appellate court ruled
that the sexual harassment policy applied to tenured Professor Cohen was "void for vagueness."
92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997). See also Silva v. University of
New Hampshire, 888 F. Supp. 293 (D.N.H. 1988) (finding sexual harassment policies vague or
overbroad as applied to punish professors who used deliberately provocative teaching techniques
to illustrate points in class and to sustain their students' interest in the subject matter of the
course).

See also Section I(C)(1) ("Academic Freedom: Teaching Methods").

E. Institutional Liability for Sexual Harassment

In 1998 the Supreme Court focused on the nature of the harm caused by sexual harassment in
employment situations. See Burlington Industries, Inc. v. Ellerth, 118 S.Ct. 2257 (1998);
Farragher v. City of Boca Raton, 118 S.Ct. 2275 (1998).

The Court articulated the following liability standard:

1. Colleges and universities will automatically be liable for sexual harassment by

supervisors that culminates in tangible employment action, such as, holding
employers vicariously liable for harassment by supervisors which culminates in
"tangible" employment action, such as discharge, demotion, or undesirable
reassignment.

2. Employers will automatically be liable for sexual harassment by supervisors that

does not culminate in tangible employment action, unless:

a. The college or university exercised reasonable care to prevent or correct

promptly any sexually harassing behavior; and
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b. The "employee unreasonably failed to take advantage of any preventive or

corrective opportunities provided by the employer."

When students are harassed by faculty members, a college or university will be liable if a higher-
level official--who at a minimum has authority to address the harassment and institute corrective
measures on the school's behalf--receives actual notice of, and is deliberately indifferent to,
faculty member misconduct.

Some institutional responsibilities include the following:

Publication and Dissemination: A sexual harassment policy should be easy to understand and
widely disseminated each academic year.

Complaint Handlers: Procedures should make clear to whom complaints should be directed.
Complaint handlers should be trained and accessible.

Due Process: Sexual harassment grievance procedures should protect the rights of both the
complainant and the accused. See AAUP, Due Process in Sexual Harassment Complaints,
POLICY DOCUMENT AND REPORTS 212 (2001 ed). Faculty peer review is an important
component of the process for faculty, and helps to ensure that the context of higher education is
properly considered.

F. Some Advice for Faculty

1. Know your legal rights and responsibilities--be aware of what conduct constitutes
sexual harassment.
2. Know your institutional policies and procedures.
3. Participate in shaping and revising such policies and related trainings.
4. Respond to individual incidents as they arise, even if you don't have a legal
obligation to do so, to help prevent development of a full-fledged hostile
environment.
5. Be aware of conduct that could constitute violations of criminal laws.

III. Consensual Relationships

AAUP recommends the following policy:

Sexual relations between students and faculty members with whom they also have an academic
or evaluative relationship are fraught with the potential for exploitation. The respect and trust
accorded a professor by a student, as well as the power exercised by the professor in an academic
or evaluative role, make voluntary consent by the student suspect. . . . In their relationships with
students, members of the faculty are expected to be aware of their professional responsibilities
and to avoid apparent or actual conflict of interest, favoritism, or bias. When a sexual
relationship exists, effective steps should be taken to ensure unbiased evaluation or supervision
of the student.

There are basically three kinds of policies: absolute prohibitions, limited bans on faculty-student
supervisory relationships, and strong discouragement.

A variety of institutional policies exist:

 The College of William and Mary "prohibits consensual romantic and/or sexual
relationships between faculty members and undergraduate students as well as between
faculty members and those graduate students for whom the faculty member has direct
professional responsibility."
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 The University of Michigan does not prohibit such relationships, but provides that such
relationships are "potentially exploitative and should be avoided."
 The University of Iowa policy provides: "No faculty member shall have an amorous
relationship (consensual or otherwise) with a student who is enrolled in a course being
taught by the faculty member or whose academic work (including work as a teaching
assistant) is being supervised by the faculty member."
 At Ohio Northern University, "faculty and staff members should not have sexual relations
with students to whom they are not married."
 The Duke University policy provides that: (1) any situation of authority be terminated
when a consensual relationship between a student and a professor exists or develops; and
(2) the relationship be disclosed to the faculty member's supervisor.

Query: Consider the implications for not only the student a faculty member may be involved
with, but for other students in the classroom.

Waters v. Metropolitan State University: A female student and male professor began a
consensual relationship after the student was no longer enrolled in the college. When the
relationship ended, the student filed a sexual harassment claim against the professor. The court
found, in part, that there was no showing of sexual harassment because there was no evidence
that the professor's actions were unwelcome. In so ruling, the federal appellate court relied on the
district court's findings, which included that the female student was an "adult student, somewhat
older than the 'typical' college student," and that the professor was no longer her teacher, and had
never been her faculty adviser. 52 Fed. Appx. 1 (8th Cir. 2002) (unpublished).

IV. Grading Practices and Policies

A. AAUP Policies Applicable to Grading

1940 Statement of Principles on Academic Freedom and Tenure: A faculty right that flows
from a "teacher's freedom in the classroom" is the assessment of student academic performance,
including the assignment of particular grades.

The Assignment of Course Grades and Student Appeals: This AAUP statement establishes the
following principles in assigning grades: (1) the faculty has the responsibility for the assignment
of grades; (2) students should be free from prejudicial or capricious grading; and (3) no grade
may be assigned or changed without faculty authorization. It provides, in relevant part, that
administrators should not "substitute their judgment for that of the faculty concerning the
assignment of a grade. The review of a student complaint over a grade should be by faculty,
under procedures adopted by faculty, and any resulting change in grade should be by faculty
authorization."

Statement on Professional Ethics: This AAUP policy provides:

As teachers, professors encourage the free pursuit of learning in their students. They hold before
them the best scholarly and ethical standards of their discipline. Professors demonstrate respect
for students as individuals, and adhere to their proper roles as intellectual guides and counselors.
Professors make every reasonable effort to foster honest academic conduct and to ensure that
their evaluations of students reflect each student's true merit.

Statement on Government of Colleges and Universities: This statement, which was originally
formulated by the AAUP, the American Council on Education, and the Association of Governing
Boards, provides:

The faculty sets the requirements for the degrees offered in course, determines when the
requirements have been met, and authorizes the president and board to grant the degrees thus
achieved.
 11

B. Some Case Law on Grading

The U.S. Supreme Court has not directly addressed the issue of whether the assignment of grades
is protected by the First Amendment right of individual professors to academic freedom. In
Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78 (1978), which upheld a
faculty decision to dismiss a medical student from school, the Court opined that "[l]ike the
decision of an individual professor as to the proper grade for a student in his course, the
determination of whether to dismiss a student for academic reasons requires an expert evaluation
of cumulative information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking." In Justice Powell's concurrence, he opined that professors
should retain "the widest range of discretion" in evaluating the academic performance of
students.

1. Academic Freedom

Several federal appellate courts have considered the First Amendment protections afforded to
professors in assigning grades:

Parate v. Isibor (Tennessee State University): Professor Natthu Parate, who taught civil
engineering at Tennessee State University, sued the administration when his appointment was
not renewed because he refused to sign a memorandum changing a student's grade from "B" to
"A." The court found that the university had violated the First Amendment, reasoning that the
"assignment of a letter grade . . . is a symbolic communication intended to send a specific
message to the student . . . [and] is entitled to some measure of First Amendment protection." In
so ruling, the court found the "message communicated by the letter grade 'A' virtually
indistinguishable from the message communicated by a formal written evaluation indicating
'excellent work.' Both communicative acts represent symbols that transmit a unique message."
And so, the court ruled, an "individual professor may not be compelled, by university officials, to
change a grade that the professor previously assigned to the student . . . . Although the individual
professor does not escape the reasonable review of university officials in the assignment of
grades, she should remain free to decide, according to her own professional judgment, what
grades to assign and what grades not to assign." At the same time, the court explained that a
professor "has no constitutional interest in the grades which his students ultimately receive."
Accordingly, the professor's rights would not be violated if the administration changed the
professor's grade (as opposed to compelling the professor to do so). 868 F.2d 821 (6th Cir 1986).

Brown v. Armenti (California University of Pennsylvania): Robert A. Brown, a tenured professor

at California University of Pennsylvania, sued the president of the university, claiming that
Angelo Armenti, Jr. ordered him to change a student's grade from an "F" to an incomplete, which
Brown refused to do. Brown failed a graduate student in a clinical education course, stating that
she had attended only three of fifteen classes. The Third Circuit held for the university president,
concluding that a "public university professor does not have a First Amendment right to
expression via the school's grade assignment procedures." It opined: "Because grading is
pedagogic, the assignment of the grade is subsumed under the university's freedom to determine
how a course is to be taught." In so ruling, the court rejected the reasoning in the Parate decision
(above) and, instead, embraced the reasoning in the Edwards case (above), because the latter
decision offered "a more realistic view of the university-professor relationship." See Robert
O'Neil, "Free Speech for Professors: 2 Court Rulings Sound New Alarms," THE CHRONICLE
OF HIGHER EDUCATION (Point of View) (June 1, 2000) ("[I]f professors' grades are no
longer sacrosanct, then it is much more difficult to resist pressure to alter disputed grades, award
degrees when faculties have declined to do so, waive academic requirements--and so on through
a lengthy list of matters that most administrators and trustees wisely view as part of faculty
governance. That is a frightening prospect, at which all parts of higher education should take
alarm."). Donna R. Euben, "Making the Grade?," Academe: Bulletin of the American
Association of University Professors, 94 (Sept.-Oct. 2001). 247 F.3d 69 (3rd Cir. 2001).
 12

Yohn v. University of Michigan: A panel of four professors unanimously flunked two dentistry
students, who were taking a clinical course for a second time. The acting associate dean then
informed the panel that the students would be allowed to retake the exam, and that other faculty
members would grade it. The students retook the exam, which involved crafting temporary
bridges, and received passing grades. Professor L. Keith Yohn, an associate professor of
dentistry, is suing the institution for changing the grades of the make-up exams from "Fs" to a
"C" and "C+." He asserted a number of legal claims, including that changing the failing grades to
passing ones violated his free speech rights. "Dentistry Professor Sues U. of Michigan Over
Grade Change," THE CHRONICLE OF HIGHER EDUCATION (Feb. 11, 2000). In May 2001
the district court ruled in favor of the university on the First Amendment claim. Relying on
Parate, the court found that Yohn had failed to allege that he was forced to change the students'
grades and, "[t]herefore, the evidence does not support a First Amendment violation of Plaintiff's
right to academic freedom." The Sixth Circuit affirmed the district court ruling, finding that the
administration did not require Yohn to make the grade change, but, instead, the administration
changed the grade. 39 Fed. Appx. 225 (6th Cir. 2002)

2. Due Process

Courts will review procedures used by a college to determine whether a grade is fair, i.e., not
arbitrary, capricious, or in bad faith. Board of Curators v. Horowitz, 435 U.S. 78 (1979).

Wozniak v. Conry (University of Illinois, Urbana-Champaign): Louis Wozniak, a tenured

professor at the undergraduate engineering school of the University of Illinois at Urbana-
Champaign, sued the administration for violating his due process rights when it reassigned him
from teaching owing to his failure to comply with established grading policies. The university's
policy "requires professors to grade on a prescribed curve and to submit their grading materials."
Wozniak turned in grades for two of his courses, but refused to submit the required materials for
review. Wozniak claimed that the university barred him from teaching further classes, cancelled
his research funds, and reassigned him to manage the department's webpage. His salary and title
remained unaffected and he remained on the faculty. 236 F.3d 888 (7th Cir.), cert. denied, 121 S.
Ct. 2243 (2001).

The Seventh Circuit ruled that the university did not violate the professor's due process rights
because he declined to participate in numerous opportunities for review within the university.
The court opined that due process had been afforded, especially where no material dispute
existed about the professor's refusal to comply with the requirement that he submit his grading
materials for review within the university: "Wozniak refused to follow the University's grading
rules, and in this suit he trumpets a claim of a right to defy them." The court continued: "A
faculty member is hardly in a position to argue that the opportunity to submit an explanation or
statement of position in writing is inadequate; professors make their living by the written
word. . . . " The court further observed,

No teacher has a fundamental right to hand in random or skewed grades, or to pretend that 95%
of his students are better (or worse) than average. No person has a fundamental right to teach
undergraduate engineering classes without following the university's grading procedures.

In so doing, the court noted, "Some universities offer their faculty more control over grading
than [in this case] and maybe discretion is good. But competition among different systems of
evaluation at different universities, not federal judges, must settle the question which approach is
best. Each university may decide for itself how the authority to assign grades is allocated within
its faculty."

Sylvester v. Texas Southern University, 957 F. Supp. 944 (S.D. Tex. 1997): Karen Sylvester, a
law student at the university's Thurgood Marshall School of Law, took James Bullock's "wills
and trusts" course. Bullock assigned Sylvester a "D," which dropped the student's class rank
from first to third. Sylvester protested the grade orally and in writing on numerous occasions,
and the school never responded. Bullock stated that he had lost her exam, but under orders,
 13

found that exam. TSU provided procedures for disputing grades, including that the academic
standing committee would review protested grades and that the dean's office would notify
students of the disposition of the matter in writing, neither of which occurred. Throughout the
court-mandated review procedures, Bullock refused to provide a complete set of exam answers.
The court ruled that, "[w]hile it is true that the assignment of a test grade is a purely academic
evaluation, Sylvester is entitled to due process in that evaluation." The court opined, "Between
active manipulation and sullen intransigence, the faculty, embodying arbitrary government, have
mistreated a student confided to their charge." In the end, the court changed the student's grade to
"pass," which resulted in her becoming joint valedictorian.

3. Some Practical Suggestions For Establishing Institutional Grading Policies

 Faculty and administration should develop clear, written grading policies,

governing any and all grading standards and appeal procedures.
 Such policies should be widely distributed to students, faculty members,
and administrators.
 A grade appeals committee should ordinarily consist of faculty members
in the department or in closely related fields.
 A grade appeals policy should be established, and should be applied in a
fair and consistent fashion. It "should . . . be available for reviewing
allegations that inappropriate criteria were used in determining the grade
or that the instructor did not adhere to stated procedures or grading
standards."
 Every effort should be made to resolve differences about grades, including
those between faculty and administration, within the university.
 Administrators should not unilaterally change a grade assigned by a
faculty member and usurp the faculty prerogative to evaluate students
academically.

V. The Fair Use Doctrine

Professors are both creators and users of intellectual property. The fair use doctrine is one
intellectual property concept with which most teachers in the classroom are familiar.

In AAUP's Distance Learning Report (1997), the Association stated:

The fair use doctrine was developed by the courts, and codified in the 1976 revision of the
Copyright Statute (Section 107). Fair use holds that it is not an infringement of copyright to
reproduce copies or phonorecords for criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research. Four factors (purpose, nature,
amount, and effect) are to be weighed in assessing fair use. This principle is well established in
the traditional classroom setting, and is equally critical in a distance learning setting. (While the
subcommittee did not directly address the question of what differentiates a traditional classroom
from a distance learning setting, the conclusions regarding this issue, and others, are predicated
on the assumption that there is no essential difference between the two in an educational sense.
Both involve a controlled interaction between a teacher and a student in order to transmit
knowledge and understanding.)

Fair use is not clear or precise and, for that reason, can be somewhat frustrating. One court
opened that the doctrine is "so flexible as virtually to defy definition." Time Inc. v. Bernard Geis
Assoc., 293 F. Supp. 130, 144 (S.D.N.Y. 1968). As Professor Robert Gorman has aptly
summarized,

The statutory provisions of fair use are open-ended. They require the consideration, and the
weighing, of a number of factors: the purpose of the copying, whether it is done for commercial
or nonprofit purposes, the quantity copied, the nature of the copied material, and the adverse
impact that copying may have on the market for the copyrighted work.
 14

While the language is broad, its application by courts has been narrow.

To determine whether the fair use doctrine applies, there is a two-step analysis:

1. What is the purpose? The fair use of a copyrighted work, for purposes such as criticism,
comment, new reporting, teaching, scholarship, or research, is not an infringement of
copyright. This includes use by reproduction in copies, including multiple copies for
classroom use.
2. Is the use of the material fair? To determine whether the use made of a work in any
particular case is a fair use the factors to be considered shall include-
a. the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
b. the nature of the copyrighted work;
c. the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
d. the effect of the use upon the potential market for or value of the copyrighted
work. (The fact that a work is unpublished shall not itself bar a finding of fair use
if such finding is made upon consideration of all the above factors).

Each factor must be analyzed separately; it is a balancing of all the factors that results in decision
of fair use. Courts have considered the following as fair use:

 Quotation of excerpts in review or criticism for purposes of illustration or comment

 Quotation of short passages in scholarly or technical work, for illustration or clarification
of the authors observations
 Summary of an article, with brief quotations, in a news report,
 Reproduction by a teacher or student of a small part of a work to illustrate a lesson
 Incidental and fortuitous reproduction, in a newsreel or broadcast, of a work located at
the scene of the event being reported.

Princeton University Press v. Michigan Document Services: An academic publisher sued a copy
shop for copyright infringement, alleging that the copy shop excerpted portions of copyrighted
works without permission. The copy shop bound segments of scholarship into "course packs."
The course packs were then sold to students for use to fulfill class assignments. The court found
that the fair use doctrine did not obviate the need to obtain permission to reproduce the works.
The court, quoting another case, explained that the fair use doctrine "permits [and requires]
courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the
very creativity which that law is designed to foster." At the same time, the court noted that the
fair use doctrine does not provide "blanket immunity for 'multiple copies for classroom use.'"
The court reasoned that the factor regarding "the effect of the use upon the potential market for
or value of the copyrighted work" was "the most important factor," and ruled that the publishers
established a "diminution in potential market value." The court also noted that the professors
assigned as much as 30 percent of one copyrighted work, and found that amount not
"insubstantial." 99 F.3d 1381 (6th Cir. 1996).

Elsevier Science v. Custom Copies: In October 2002 MIT Press, Elsevier Science, and John
Wiley & Sons filed a copyright infringement suit against a Florida copy shop for copies sold as
course packs to students at the University of Florida at Gainesville. Case No. 02-CV-127 (N.D.
Fl., Oct. 7, 2002); Megan Rooney, "Copy Shop That Made Coursepacks for U. of Florida Faces
Lawsuit Alleging Copyright Infringement," THE CHRONICLE OF HIGHER EDUCATION
(Oct. 14, 2002).

Elsevier Science v. Westwood Copies, Inc.: In January 2003 four publishers (those in the Florida
case plus Sage Publications) sued a copy shop that assembles and sells course packs to students
at the University of California at Los Angeles. Case No. 03-CV-283 (C.D. Cal., Jan. 10, 2003);
Megan Rooney, "Publishers Sue Copy Shop, Alleging Infringement in Course Packs for UCLA,"
THE CHRONICLE OF HIGHER EDUCATION (Jan. 29, 2003).
 15

VI. Student Privacy Rights

"Student privacy has always been a hot-button issue in academe, and faculty are often on the
front lines of this debate." Ann D. Springer, "Do Students Have a Right to Privacy?," Academe:
Bulletin of the American Association of University Professors 70 (Sept/Oct 2002). The Family
Educational Rights and Privacy Act (FERPA) provides that identifiable information from student
education records cannot generally be released to any third party without the consent of the
student. 20 U.S.C. § 1232g. An "educational record" is defined as "those records, files,
documents and other materials which-

(i) contain information directly related to a student; and

(ii) are maintained by an educational agency or institution or by a person acting for such agency
or institution."

20 U.S.C. § 1232g(a)(4)(A)(i)&(ii). An institution's release of such information jeopardizes its

federal funding, including student financial aid. Faculty concerns about FERPA are usually
triggered in terms of grading practices. A recent decision by the U.S. Supreme Court suggests
that faculty members may use peer grading in the classroom.

Owasso Independent School District v. Falvo: The parent of a grade-school age student sued the
school district, claiming that the peer grading method embarrassed her child. The parent argued
that the disclosure of her child's work and scores to student "graders" violated FERPA. The
Court disagreed. It ruled that because the grades were not recorded in the teacher's grade book,
they were not "maintained" by the institution, as required by FERPA. The Court noted that peer
grading is a legitimate pedagogical tool that allows students to learn from the grading process. At
the same time, however, the Court declined to rule on whether a grade book itself is protected as
an educational record. 534 U.S. 426 (2002).

The U.S. Supreme Court considered FERPA again in 2002 in Gonzaga v. Doe. 536 U.S. 273
(2002). In that case the court ruled that no individual right of action exists under FERPA, which
means that a student or parent aggrieved by the disclosure of personal records, as alleged in
Falvo, cannot use FERPA to bring a lawsuit. In that ruling, the Court emphasized that FERPA
focuses on a "policy or practice" of noncompliance, rather than the infrequent accidental
disclosure of information. Accordingly, "faculty and administrations now have less need for
worry about lawsuits resulting from the occasional release of student records." Springer, supra.

Congress recently amended FERPA in the U.S.A. Patriot Act. Those amendments make it easier
for lawyers in the U.S. Attorney General's office to obtain court orders to access educational
records relevant to an investigation or prosecution of terrorism. Once presented with such a court
order, institutions must disclose the requested information. The amendments provide that the
institution does not need to seek consent from the parent or student, or maintain a record of that
disclosure. In addition, the FERPA amendments provide immunity for institutions that make
disclosures in responses to these court orders. For a general overview of the recent FERPA
amendments, under the U.S.A. Patriot Act, see "Recent Amendments to Family Educational
Rights and Privacy Act Relating to Anti-Terrorism Activities" (U.S. Department of Education
Apr. 12, 2002) <http://www.ed.gov/policy/gen/guid/fpco/pdf/htterrorism.pdf >.

VII. Indemnification Concerns of Faculty

The duty to defend and indemnify faculty by colleges and universities is grounded in a number
of sources, including state laws, case laws, and institutional policies. Such indemnification
policies are often included in faculty handbooks. The policies themselves vary significantly,
depending on the institution and the jurisdiction. According to the AAUP,

There has been in recent years a steady growth in lawsuits filed against faculty members over the
discharge of their professional responsibilities. Legal actions have been initiated by colleagues,
by rejected applicants for faculty positions, by students, and by persons or entities outside the
 16

academic community. Litigation has concerned, among numerous issues, admissions standards,
grading practices, denial of degrees, denial of reappointment, denial of tenure, dismissals, and
allegations of defamation, slander, or personal injury flowing from a faculty member's
participation in institutional decisions or from the substance of a faculty member's research and
teaching. . . . . Colleges and universities have a responsibility for ensuring legal representation
and indemnification to members of their faculties who are subject to lawsuits stemming from
their professional performance in institutional service or their conduct of research and teaching.

AAUP's Statement, Institutional Responsibility for Legal Demands on Faculty, REDBOOK at

130.

For some legal purposes, faculty members may be agents of the institution when, for example,
they are dealing with students enrolled in their courses. Department chairs are almost always
considered institutional agents on a continuous basis.

As a general rule, institutional indemnification policies cover faculty for occurrences within their
"scope of employment." For faculty members the question is, of course, what is considered
outside the scope of employment?

 Is a professor covered who is personally sued for defamation when reporting on her
scholarly research, which involved alleged labor abuses by the nursing home chain
Beverley Enterprises, at a town meeting convened by legislative leaders? Cornell
University decided to defend and indemnify Kate Bronfenbrenner. According to Nelson
E. Roth, General Counsel at Cornell University, "Fundamental to this decision was the
conclusion that the School of Industrial and Labor Relations, where Bronfenbrenner is
the Director of Labor Education Research, encourages such public participation by its
faculty members as part of its educational and research missions, the school paid her
expenses, her 'job description' included public outreach, and the dean felt strongly that the
activity was within the scope of employment."

 Is a consensual relationship "gone bad," where a student now alleges sexual harassment
by his or her professor, outside the scope of employment? Courts have found sexual
harassment to be outside the scope of employment. See, e.g., Farmers Ins. Group v.
County of Santa Clara, 11 Cal. 4th 992 (1995). However, "sexual banter" may not be
outside the scope of employment. See Jacobus v. Krambo Corp., 78 Cal. App. 4th 1096
(2000). Please note that some administrations are declining to indemnify faculty who fail
to attend campus training programs on sexual harassment. See Mary Ann Connell, Ann
H. Franke, and Barbara E. Lee, "Department Chair Online Resource Center: Agency and
Indemnification" (ACE Department Chair Online Resource Center).
 What about a teacher who is alleged to have lured a student to his apartment to pick up
her class assignment and then rapes and kills her? At least one court has ruled that
criminal acts may be covered by a policy providing for defense and indemnification for
conduct within the scope of duty. See, e.g., State v. McBrayer, 14 P.3d 43 (N.M. App.),
cert. denied, 16 P.3d 442 (N.M. 2000). The court reasoned that the duty was returning
homework and the criminal act was accomplished in connection with that duty.
 What about a professor who is sued by a student in a grading dispute? In Chasin v.
Montclair State University, 159 N.J. 419 (1999), the N.J. Supreme Court ruled that the
university was not required to pay the legal expenses of Barbara Chasin, a professor of
sociology, who was sued by a student in a grading dispute under the state torts act. The
court reasoned that the state had no duty to indemnify the professor because she had
ignored earlier advice from the state's attorney general.
 What about a professor whose federal grant program is being investigated by the federal
government? In Buchwald v. University of Minnesota, 573 N.W.2d 723 (Minn. App.
1998), a professor appealed the university's decision to deny his request for
indemnification in the federal government investigation. The court noted that the
indemnification policy clearly provided for the president to determine coverage, and that
the president's decision to decline providing such protection to the professor was not
 17

arbitrary because the professor failed to cooperate in the investigation, including by

failing to provide itemized time records.

AAUP's Statement, Institutional Responsibility for Legal Demands on Faculty, provides:

The Association recommends that colleges and universities adopt a comprehensive general
policy on legal representation and indemnification for members of their faculties. The policy
should ensure effective legal and other necessary representation and full indemnification in the
first instance for any faculty member named or included in lawsuits or other extra-institutional
legal proceedings arising from an act or omission in the discharge of institutional or related
professional duties or in the defense of academic freedom at the institution. It should also include
specific provisions as follows:

1. The policy should include all stages of such legal action, threatened or pending, in a
judicial or administrative proceeding, and all aspects of the use of compulsory process
whether or not the faculty member is a party in the proceeding.
2. The policy should ensure effective legal representation of the faculty member's interests,
whether by the institution's regular counsel or by specially retained counsel, with due
attention to potential conflicts of interest.
3. The policy should be applicable whether or not the institution is also named or included
in the legal action, though the institution might consider joining in the action as a party if
it has not been named.
4. The policy should provide for all legal expenses, for all other direct costs, and for court
judgments and settlements.
5. The policy may provide for legal representation and indemnification through insurance.
6. The policy may provide for a faculty committee to make recommendations on the
application of the policy to extraordinary circumstances not foreseen at the time of
promulgating the policy of general application.