Students' rights: a conceptual framework for postsecondary student academic freedom.

Students' rights: a conceptual framework for postsecondary student academic freedom. INTRODUCTION Historically, colleges and universities have various legalrelationships with students. One of the most common relationships isunder the doctrine of in loco parentis as institutions serve "inthe place of parents." However, the phrase has come to havedifferent applications of its meaning. It is safe and sound on campuses(Bratten, 2006; Honigan, 2003; Sweeton & Davis, 2003, 2004); or, itis applied as living-and-learning communities (Altschuler &Kramnick, 1999); or, it is viewed in a legal context, thus giving riseto contract law governing the relationship between an institution andits students (Goodman & Silbey, 2004; Melear, 2003). Whateverone's view, in loco parentis has undergone a dramatictransformation through the years, beginning in mid-July 1971. The focusof this paper is to examine in loco parentis in light of how the"age of majority" from the twenty-sixth amendment of the U.S.Constitution lays the groundwork for the contractual relationshipbetween students and postsecondary institutions. Then, it demonstrateshow "age of majority" relates to student academic freedom. Indoing so, the paper explains how student academic freedom can only be aproduct of a contractual relationship. As a result, a Student AcademicFreedom Conceptual Model is presented. These issues are represented in three sections: (1) Background todemonstrate the shift from traditional views of in loco parentis to ageof majority contractual obligations; (2) Conceptual Model to delineateaspects of student academic freedom, postsecondary obligations, andstudent conduct responsibilities; and (3) Conclusion summarizes how theconceptual model of student academic freedom is limited by contractualrelationships. As an important note, the information in this paper relatesprimarily to public institutions. Students at private institutions maynot be afforded the same rights as they would if attending public ones.Kaplin and Lee (2007) make this very clear. "Before a court willrequire that a postsecondary institution comply with the individualrights requirements in the federal Constitution, it must first determinethat the institution's challenged action is 'stateaction'" (p. 33). Thus, unless an institution is statecontrolled or under state action by some relationship, such as acontract, individuals at private institutions may not be afforded thesame constitutional protections as they would at public ones. BACKGROUND Traditionally, postsecondary institutions assume responsibility forthe general well being of students well beyond academics. As such, it isa duty of education to impact the whole person (Bratten, 2006; Nuss,1996; Pascarelli & Terenzini, 2005) where the academy could beregarded as a guardian, responsible for oversight for student'swell being from intellectual maturity to moral development, from"libido to laundry" (Altschuler & Kramnick, 1999, para.4). However, the association between student and institution as a legalrelationship changed in the 1960s as institutions began to expelstudents for political and social activism (Mealer, 2003; Pollet, 2002).These actions prompted a landmark case that led to the changing natureof the student/institution relationship. The court case, Dixon v.Alabama State Board of Education (1961), was influential in the shift.The case was based on six black students at Alabama State College whohad been expelled for participating in civil rights activities. Theinstitution claimed it had the right to oversee what was proper behaviorof its students on and off campus (i.e., in loco parentis). The courtrejected the idea of in loco parentis by educational institutions asthey exercised power over students in a similar fashion as parentshaving legal responsibilities over their child as minors (Kaplin &Lee, 1997). The ruling profoundly affected the role of colleges anduniversities toward students. If the doctrine of in loco parentis nolonger applied to oversight as it had in the past, how does it affectcollege students? To answer the question, one must look beyond the historical rootsof in loco parentis and through the lens of contract law. This paperpresents the position that a student's relationship to his or herpostsecondary institution can be considered a result of the twenty-sixthAmendment of the Constitution ratified July 1, 1971 and not based on thetraditions of in loco parentis. It states: "The right of citizensof the United States, who are eighteen years of age or older, to voteshall not be denied or abridged by the United States or by any State onaccount of age." This notion is commonly acknowledged as the"age of majority." It is the stage in life where a person isregarded to have legal standing as an adult. According to thisconstitutional right people are provided with privileges to vote andenter into binding contracts at the age of 18 instead of 21, whichpreviously to 1971 was considered the age of majority. Prior to 1971 US citizens under the age of 21 would be treated as aminor. This afforded colleges and universities opportunities to invokeparental-type rights on campuses, certainly toward those under the ageof 21. Even though the age of majority is more fully delineated by eachstate, it most commonly applies at the age of 18 where it carries"the same duties, liabilities, responsibilities, rights, and legalcapacity as persons heretofore acquired at twenty-one years of age"(Kaplin & Lee, 1997, p. 138, e.g. citing the Michigan statutes). As US citizens, students have certain rights and responsibilities.Some of these include the protections afforded by the twenty-sixthamendment mentioned above, as well as exercise of religion, freedom ofspeech and press, and right to assemble from the first amendment, andcitizens may not be deprived of life, liberty (one's good name), orproperty (cannot be unduly removed from an institution) without dueprocess under the fourteenth amendment. However, many of these rightsare determined by a contractual relationship between students and theirpostsecondary institutions Mawdsley, 2004). As soon as a studentmatriculates, he or she enters into a contractual relationship. Astudent is bound by policies and procedures presented in communications,such as handbooks, catalogues, financial agreements, registrationprocedures, code of conduct brochures, standardized procedures not foundin written form, even syllabi and other materials delineating academicstandards and student conduct issues (Mawdsley, 2004; Poskanzer, 2002).Even though students are contractually bound to abide by the terms ofthese contracts, they, more so at public institutions than private ones,are provided state and constitutional protections, as well. A studentbenefit of being a member of the age of majority is first amendmentprotection of freedom of speech. However, just as the age of majoritycomes with contractual obligations, freedom of speech protections alsohas particular restrictions and has come under intense scrutiny. The scrutiny arises, often, because there is confusion aboutviewing freedom of expression and academic freedom synonymously. Theissue is critical enough to warrant public hearings. For example, inPennsylvania in late 2005, the State House Select Committee heardtestimony concerning academic freedom and its application to students.Representatives from the American Association of University Professors(AAUP) reminded the committee that freedom of expression and academicfreedom were two separate issues (Bradley, 2006). However, it is notfree speech, per se, that is being examined, but student academicfreedom. Often the two are viewed as synonymous, thus adding to theconfusion of student rights and obligations. At the core of the debateis the following: The student's "Freedom to express one'sopinion and to challenge those of the instructor. Openness and tolerancefor a diversity of opinion, without fear of reprisal, is a centralaspect of the educational process" (Bayer, 2004, p. 80). Theconceptual model below provides a clarification of rights andresponsibilities related to student academic freedom. The differences between freedom of speech and student academicfreedom can be summarized by the following. Speech is considered freeand protected when courts determine the communication is in publicinterest. Travis' (2000) concluded that "speech that is notpublic and is judged to interfere with harmonious working relationshipsis not constitutionally protected" (p. 816) as based onconstitutional rights. Student academic freedom, though, is based in anon-legal document from the American Association of UniversityProfessors (AAUP). It pertains to issues of freedom to learn in acapacity for critical judgment as they engage in activities in search oftruth in the classroom and on campus (Kaplin & Lee, 2007). Thesefreedoms generally concern discussion, inquiry, and expression; toorganize and join associations; discuss issues and form opinionspublicly and in private; hear guest speakers; express views ofinstitutional policy on academics and student issues; expressions instudent publications; establish free inquiry; exercise rights ascitizens; and exercise other constitutional rights (AAUP PolicyDocuments and Reports, 2006). Thus, it should be clear that freedom of speech has aconstitutional foundation with legal rights and student academic freedomis a suggested policy statement from an organization that has no directlegal links to institutions. This suggests, then, that student academicfreedom is not an inherent right grounded in the constitution. It onlycan be a right to the extent that student academic freedom issues aremade available, according to a contractual relationship, in policies andprocedures presented in communications, such as handbooks, catalogues,financial agreements, registration procedures, code of conductbrochures, standardized procedures not found in written form, evensyllabi and other materials delineating academic standards and studentconduct issues. On the one hand, students have standard rights andprotections from the constitution as citizens. On the other hand,student academic freedom is only a conceptual idea not tied to any legalstandard independent of some sort of contractual context. Entering intoa contractual relationship is made possible because in loco parentisreflects more of a contractual relationship because of the age ofmajority theory than a parental obligation by institutions. One can beleft to wonder how students, who are now of legal age, can expressconstitutional freedoms and rights, yet be constrained by contractualagreements. If students expect particular freedoms, how are theyassociated with their contractual obligations? The following model helpsrepresent these associations. CONCEPTUAL MODEL The Student Academic Freedom Conceptual Model (Figure 1)demonstrates key elements of student academic freedom in relation tocritical aspects of principle, policy, and law. First, it relates theAmerican Associate of University Professors' statements pertainingstudent academic freedom. Second, information is related to college anduniversity obligations. Third, student conduct is explained in relationto age of majority. Within student conduct, the model deals with thecontractual relationships among the AAUP principles, student academicfreedom concerns, college and university obligations, and constitutionalissues. [FIGURE 1 OMITTED] AAUP STATEMENT OF STUDENT ACADEMIC FREEDOM The role of the AAUP is to advance academic freedom and sharedgovernance (About the AAUP). Two salient points must be made. First, theAAUP primarily deals with faculty issues as it relates to colleges anduniversities. Student conduct is considered subsequent to facultyconduct. Nevertheless, the general conception of academic freedomextends from the AAUP. Second, the AAUP has no legal jurisdiction overfaculty or institutions for conduct. In essence, academic freedom andits expression is not a legal concept (Hendrickson, 1999; Standler,1999, 2000). Therefore, both faculty and students cannot rely onprinciples established by the AAUP as legal rights. Nevertheless, theAAUP does provide standards for student academic freedom. In 1967 theAAUP developed a statement jointly with other influential entities.These were interpreted and reaffirmed in 1990, 1991, and 1992 as havingwithstood the test of time to be viewed as an excellent example forpostsecondary institutions to consider when formulating student academicfreedom standards. They are summarized below (Joint Statement on Rightsand Freedoms of Students, AAUP). Often they are referred to as theStudent Bill of Rights, but they have no direct legal tie to the USConstitution and should not be implied they do (Mullendore & Bryan,1992). * Students should be given freedom to learn upon appropriateconditions in the classroom, on campus, and in the larger community andfreedom comes with responsibility. * Institutions have a responsibility to develop policies andprocedures to safeguard freedom in accordance with standards of eachinstitution. * Faculty should encourage free discussion, inquiry, andexpression. * Student performance should be based on academic standards, notopinions or unrelated conduct. * Students should be free to take reasoned exception with facultyviews as related to course content. * Through orderly procedures, students should have protectionagainst capricious or prejudice academic evaluation. * Students should have freedom of association on campus and withcampus activities. * Student and student organizations should be free to expressopinions publicly and privately regarding academic inquiry. * Student publications and press should be free to exploreintellectual inquiries. * Student behavior off campus should have the same privileges asother citizens. * Student behavior is subject to campus, civic, and federalregulations. Student academic freedoms are governed by three major conditions:(1) academic inquiry; (2) institutional, civic, and federal limitations;and (3) AAUP statements not legal documents with rights and privilegesautomatically afforded to students when they matriculate. Academicinquiry means students' discussions should be guided by matters ofthe "transmission of knowledge, the pursuit of truth, thedevelopment of students, and the general well-being of society"(Joint Statement, AAUP, Preamble section, para. 1). Institutional,civic, and federal limitations relate to student conduct both on campusand off. On campus, students who violate institutional regulations areto be treated with due process and judgments without prejudice orcapriciousness. Students who violate civic or federal regulations shouldbe dealt with in a manner consistent with the infraction, whether on oroff campus. This does not mean institutions are relieved ofresponsibilities toward students. COLLEGE AND UNIVERSITY OBLIGATIONS Though institutions are not considered as functioning in locoparentis, they must provide reasonable services and protections.According to their publications and standardized operational procedures,postsecondary institutions are obligated to demonstrate a fiduciaryresponsibility toward students. Below are some major indicators ofobligations, which are governed by legal considerations (Bayer, 2002;Cloud, 2002; Gehring, 2000; Mawdsley, 2002). * Offer and teach courses as advertised. * Teach courses at appropriate levels as stated in catalogs. * Teach course content as prescribed by course catalogs. * Provide services as presented in college and university catalogs,student handbooks, and other literature relating to the collegeexperience. * Abide by state law. * Provide due process for infractions committed by students. * Provide a reasonable expectation to a program of study asoutlined in college and university literature (property right). * Provide hearings to clear one's name if impugned (libertyrights). * Provide a reasonably safe campus environment. Major obligations, then, relate to what institutions must provide.By written, oral, implied, or expressed communication (Hendrickson,1999) parties enter into a formal agreement upon students'matriculation. The result is that both the institution and its studentsare obligated to performance according to particularly standard ofconduct according to reasonable conditions set forth in catalogs,student handbooks, and other literature relating to the collegeexperience. These provisions indicate two chief reference points: (1)institutions are not legally bound to provide academic freedom,in-and-of itself, by AAUP or any other standards; and (2) institutionsare obligated by law to provide services and protections according tothe standards they establish, as well as from state and federal laws andregulations. In essence, the statement about student academic freedom andpostsecondary obligations function as mutually exclusive, independententities. They are separate concepts with no overlap in utility unlesscollege and university communications stipulate a nexus between studentacademic freedom and the institution. This is not an admission oftightness or wrongness, but a revelation of terms of a contract."Courts of law have consistently found that the relationshipbetween students and their postsecondary institutions is a contractualone" (Mawdsley, 2002, p. 5). STUDENT CONDUCT The twenty-sixth amendment of the US Constitution becomes acutelyrelevant for student conduct on campus. The amendment provides UScitizens the right to vote at the age of 18. It established the age ofmajority and the right for students of age to enter into contracts withinstitutions under state law (Kaplin & Lee, 1997). Because of this,the issue centers on what documents and processes constitute acontractual relationship. Most have been iterated previously and arereviewed below. * Formal matriculation on campus, real or virtual, of a personaccepted as a student. * Course catalogs. * Student handbooks. * Code of conduct statements. * Operational procedures pertaining to students, such as financialaid, housing, registration, and organizations. * Rights provided by state constitutions. * Public rights afforded all citizens, such as found in first,fourteenth, and twenty-sixth amendments, as well as other federal acts. Thus, student conduct is governed by terms of contractualrelationships enacted when he or she matriculates. The contract isunderstood in three key realms. First, institutional policies andprocedures describe the relationship. Second, state mandates provideacceptable behavior parameters for its citizens. Third, federal issuesapply to all US citizens. Unless colleges and universities are bound byinstitutional policies and procedures (or state mandates) to providestudent academic freedom, students do not have a legal right to it. Theydo have a right to freedom of speech and other constitutional issues,but even these must follow standardized policies and procedures enactedby institutions (e.g., Hendrickson, 1999; Kaplin & Lee, 1997;Poskanzer, 2002; & Standler, 1999/2000). Furthermore, studentacademic freedom rights, if provided, may deviate significantly from theAAUP principles. There is no direct legal connection betweeninstitutions and the AAUP. Thus, three of principles govern student conduct, although they canvary from campus to campus: (1) institutional policy, procedures, andpractices; (2) civic laws; and (3) federal governance. Under theseconditions, student academic freedom is only evident and becomes a legalmatter if it is tied to institutional policy. Moreover, it becomes afreedom of speech matter only to the extent that a person's rightto speak for public good is violated. In other words, student academicfreedom and free speech are also mutually exclusive concepts in-and-ofthemselves. SUMMARY Students can only make legal claims to academic freedom as acontractual arrangement if stipulated by the institution. They can makethis claim because of the age of majority from the twenty-sixthamendment gives them standing to enter into contractual agreements asstudents at the age of 18. Furthermore, student academic freedom claimsof constitutional protections are only valid to the extent that astudent's speech is viewed for the public good. Students, whosespeech against an instructor, administrator, staff member, or theinstitution is considered personal gain not public good, may findthemselves under sanctions for violating student conduct policies, thatis, violating terms of a contract of which they are obligated when theymatriculated. Student academic freedom is not a license to speak andbehave as one sees fit, but is governed by institutional, state, andfederal regulations. CONCLUSION The development of the Student Academic Freedom Conceptual Model isnot to imply that students do not have rights. Its developmentpromulgates the concept of appropriate student conduct according toinstitutional, state, and federal standards. For better or worse, when aperson turns 18 years of age and enters college, he or she also entersinto contractual relationships that govern conduct. If institutionsendorse a student academic freedom policy, then students havecontractual rights to its conditions. Those rights are not universallycovered by state or federal constitutions, though. If, however, studentacademic freedom rights are established by a contractual relationshipand violated at public institutions, students may have protections underthe US Constitution as well as other breach of contract laws.Protections are not automatic, but based on the type of the contractualconditions, as well as student and institutional conduct. Ultimately,students at the age of 18 are generally considered adults with rights toenter into contractual relationships. Entering college is to enter intocontractual obligation. Students have, thus, a responsibility to theterms of contracts and may claim freedoms and protections only accordingto its conditions as governed by institutional, state, and federalpolicies. Ultimately, student academic freedoms only exist to the extentthat postsecondary institutions grant them in accordance under legalstandards. REFERENCES AAUP Policy Documents and Reports. (2006). Baltimore: Johns HopkinsUniversity Press. About the AAUP. AAUP website. http://www.aaup.org/AAUP/About/ Altschuler, G.C., & Kramnick, I. (1999). A better idea hasreplaced 'in loco parentis.' Retrieved October 12, 2008, fromhttp://www.writing.upenn.edu/~afilreis/ wheelstory.html Bayer, A.E. (2004). Promulgating statements of student rights andresponsibilities. New Directions for Teaching & Learning, 99, 77-87. Bradley, G. (2006). AAUP leaders testify in public hearings.Academe, 92(1), 11-12. Bratten, R.D. (1999). 'In loco parentis' invasion ofprivacy or moral formation? Retrieved October 12, 2008, fromhttp://www.theuniversityconcourse/ IV,6,4-12-1999/Bratten.htm Cloud, R.C. (2002). Safety on campus. Education Law Reporter, 162,1-27. Gehring, D.D. (2000). Understanding the legal implications ofstudent affairs practice. In M.J. Barr & M.K. Desler (Eds.), Thehandbook of student affairs administration (2nd ed.), pp. 347-376. SanFrancisco: Jossey-Bass. Goodman, D.J., & Silbey, S.S. (2004). Defending liberaleducation from the law. Retrieved October 14, 2008, fromhttp://scholar.google.com/scholar?hl=en&lr=&client=firefoxa&q=cache:G_n56iLveeAJ:web.mit.edu/anthropology/faculty_staff/silbey/pdf/%25204DefendingLibfinalja n03.doc+legal+age+legislation+in+loco+parentis+canada Hendrickson, R.H. (1999). The colleges, their constituencies, andthe courts, 64. Topeka, KS: National Organization on Legal Problems inEducation. Honigan, R.D. (2003). Why the best colleges may be your worstchoice. University Concourse, 4(6). Retrieved October 12, 2008, fromhttp://universitysecrets.com/ch06.htm Joint Statement on Rights and Freedoms of Students. AAUP website.http://www.aaup.org/AAUP/pubsres/policydocs/stud-rights.htm Kaplin, W.A., & Lee, B.A. (2007). The law of higher education(4th ed.). San Francisco: Jossey-Bass. Kaplin, W.A., & Lee, B.A. (1997). A legal guide for studentaffairs professionals. San Francisco: Jossey-Bass. Mawdsley, R.D. (2004). Students rights, safety, and codes ofconduct. New Directions for Community Colleges, 124, 5-15. Melear, K.B. (2003). From in loco parentis to consumerism: A legalanalysis of the contractual relationship between institution andstudent. NASPA Journal, 40(4), 124-148. Retrieved October 14, 2008, fromhttp://publications.naspa.org/ naspajournal/vol40/iss4/art8 Mullendore, R.H., & Bryan, W.A. (1992). Rights, freedoms, andresponsibilities: A continuing agenda. New Directions for StudentServices, 59, 101-107. Nuss, E.M. (2003). The development of student affairs. In S.R.Komives, D.B. Woodard & associates (Eds.), Student services: Ahandbook for the profession (4th ed., pp. 65-88). San Francisco:Jossey-Bass. Pascarelli, E.T., & Terenzini, P.T. (2005). How college affectsstudents: A third decade of research (vol. 2). San Franscico:Jossey-Bass. Pollet, S. (2002). Is in loco parentis at the college level a deaddoctrine? New York Law Journal, 228, 4. Poskanzer, S.G. (2002). Higher education law. Baltimore: JohnsHopkins. Standler, R.B. (1999/2000). Academic freedom in the USA. RetrievedFebruary 19, 2006, from http://www.rbs2.com/afree.htm Sweeton, N., & Davis, J. (2003, 2004). The evolution of in locoparentis. Retrieved January 10, 2006, fromhttp://www.sahe.colostate.edu/Journal_articles/Journal2003_2004vol13/Loco_Parentis.doc Travis, J. E. (2000). Censorship in higher education: Is the publicforum at risk. Community College Journal of Research & Practice,24(10), 809-821. Randall G. Bowden, Kaplan University