12/12/2023

EDG 6305

Dr. Brook Dicksion

In my research, I found several legal and ethical issues that can impact the academic advising profession when assisting students with degree planning. Legal issues include but are not limited to "due process, as well as issues with tort (negligence, educational malpractice) and contract law ( breach of contract).

It is important for advisors and those seeking to work in advising, to understand that by law "students at public institutions have a property interest in their continued enrollment that cannot be taken away (Rust, 2015). Secondly, advisors are considered the "face of the institution" and often students seek our educational, personal and professional judgment to assist them throughout their academic judgment. Thus for this reason an advisor's survival guide is needed.

The following legal and ethical guide was prepared with advisors in mind. A lot of what we learn in the field of advising is learned on a day-to-day basis. We cannot prepare for every situation and every student, but we can become familiar with the legal and ethical dilemmas of our field. For the sake of this assignment, I will focus mostly on 2-year colleges, as well as give an example of a 4-year policy.

Thank you all for reading my legal guide!

Landy

Source: U.S. Constitution, 14 Amendment

• The 14 Amendment, is widely known as the "right to due process."

• However, under the Law of the land, the amendment grants additional rights to citizens of the U.S. and the state in which they reside additional protections.

• No state can make or enforce a law that will restrict the privileges or immunities of citizens of the United States.

• Additionally, no state can deprive any person of life, liberty, or property, without due process of the law. Nor can any state deny jurisdiction to equal protection under the law.

(U.S. Const. amend. XIV, § 1).  

Link: https://www.archives.gov/milestone-documents/14th-amendment

Source: Texas Constitution

• The Texas Constitution mirrors the U.S. Constitution in its protections for citizens of the state of Texas.

• Deprivation of life, liberty, property, etc., must be by due course (process) of the law.

• No citizen of the state shall be deprived of life, liberty, property, privileges, or immunities or any manner of disenfranchised, except under the due course (process) of the law of the land

(Tex. Const. art. I, § 19).

Link:https://statutes.capitol.texas.gov/Docs/CN/htm/CN.1/CN.1.19.htm

Source: Texas Education Code

State Funding: Performance Tier

Tex. Educ. Code § 130a.101(c).

• Per the recent changes of H.B. bill 8, the Tex. Educ Code § 130a.101(c) will now include performance goals for community colleges

• CC will now be asked to complete completion goals for each degree and certificate they award

• As part of the completion rate, CC also will receive more funding for the number of certificates, degrees, and other credentials they award to students.

• This law also connects with Texas's educational goals for the state.

Link:https://statutes.capitol.texas.gov/Docs/ED/htm/ED.130A.htm#130A.101 

Source: Texas Administrative Code

Tex. Admin. Code tit. 19, § 4.345

• Per the state requirements for required filing for degree plans (Tex. Educ. Code § 51.9685) institutions are responsible for managing required degree planning in the following ways:

  • Provide students with information about degree plan filing requirements and options for academic advising (electronic communication included)

  • Notify students failing to file a degree plan and shall not provide an official transcript to the students until a degree plan is filed 

Link: https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=1&ch=4&rl=345

Texas Higher Education Coordinating Board, in accordance with the state’s executive and legislative branches, oversees the compliance of Texas higher educational institutions (Tex. Educ. Code § 61.035). Additionally, the agency also reports to the Department of Education to ensure the compliance of all Texas schools who receive funding from the DOE are in compliance. 

If an institution is found noncompliant with both federal and state regulations, they are subject to losing funding in addition to facing additional penalties under the law. As a part of higher education student services, academic advising assist with the degree completion and referral to support services offered at the institution a student chooses to enroll. While both legal agencies do not oversee NACADA and the CAS Professional standards for higher education, the law does provide a framework for how advisors can make legal and ethical decisions in their field.

Scott v. Savers Property & Casualty Insurance Co., 262 Wis. 2d 127, 159-160 (Wis. 2003)

Ryan Scott was a student hockey player for a local Wisconsin high school. Scott and his parents sought advice from a licensed guidance counselor at the school about the NCAA curriculum requirements for NCAA Division I eligibility. The counselor incorrectly advised on courses Ryan could take for his English requirement. It was determined that Ryan did not meet the core English requirement for scholarship eligibility due to not taking the needed class.

https://law.justia.com/cases/wisconsin/supreme-court/2003/16560.html

Hendricks v. Clemson Univ., 578 S.E.2d 711 (S.C. 2003)

After transferring to Clemson, to play NCAA baseball the student learned from the athletics advisor that he had not completed the courses required for NCAA eligibility in his last year.

• Per NCAA rule, students must comply with the 50% rule which requires student-athletes to complete at least 50% of the course requirements toward their major to be eligible to play. It was recommended Hendricks choose Speech and Communication, due to Clemson not offering his degree plan.

• Hendricks had not been evaluated by the athletics academic advisor to determine if he complied with NCAA rules. Despite being enrolled 15 hours for the Fall, to comply with the NCAA rules Hendricks needed to be enrolled at 21 hours. The advisor did attempt to correct the mistake but the student's appeal was denied due to not meeting the minimum requirements for eligibility.

https://law.justia.com/cases/south-carolina/supreme-court/2003/25606.html

Court Ruling and Burden of Proof: In both cases, it was determined that a student who files a lawsuit stating negligence will be required to prove the following in Tort cases (Richards, 2008):

1) The institution owed the student a certain duty of care in advising them concerning advising acts or failures to act that could foreseeably result in harm to the student

2) The institution failed to uphold that duty

3) Negligence was the cause of the harm that occurred

4) the student suffered actual injury

(34 C.F.R. § 602.1).

Link: https://www.ecfr.gov/current/title-34/subtitle-B/chapter-VI/part-602

Accreditation is determined by the completion of degree plans as well as the student's continued enrollment at an institution. In advising practice, it is important to be aware of degree curriculum and time of completion (degree plans) course offerings, program changes, and any other issues that may impact a student's ability to complete their degree plan. This can not only impact accreditation but also impact the college's goals, initiatives, and funding if students do not complete their degree plans promptly.

For the institution, creating programs that can assist in students' transition to the workforce assists in building trust not only with the institution and the student but also with employers. Additionally, as the school builds a reputation with students and employers, the local community (especially the 2-year colleges) is more willing to support funding initiatives that can benefit the institution and the surrounding communities.

• Institutions of higher education, including college districts are encouraged to develop undergraduate academic certificate programs of less than degree length. Certificates (Undergraduate) may be awarded upon completion of either:

  • "core curriculum" (42 hours),

  • a field of study curriculum (Psychology, Sociology, Business, etc.)

  • or 50% of the courses specified in a voluntary statewide transfer compact

    
    

• Additionally, students listed under a multidisciplinary degree program must file a degree plan and meet with academic advising to complete a required degree plan that:

  • accounts for all remaining credit hours required for the completion of the degree program

  • emphasizes the student transition to a particular 4-year college or university that the student chooses; and

  • prepares the student's intended field of study or major at the 4-year college.

• Each public junior college is required to establish a multidisciplinary studies associate program (Associate of Arts or Science)

  • Must be 60 hours

  • beyond the core curriculum (42 hours) student must consult with academic advising and transfer to a specific field of study or major at the student's university of choice

Link: https://pol.tasb.org/PolicyOnline/PolicyDetails?key=304&code=EFBA#legalTabContent

1) Plan for your advising sessions: this area is where an advisor takes time to learn about the student. The advisor reviews the academic history, test scores, educational goals, and other information sources that might be available. An important part of this section is advising notes. According to the author, it can be useful to remind the advisor of things that need to be accomplished, can help set the agenda for the session, and is extremely useful to advising center models, where the student can see different advisors each session.

2) Focus on the immediate goal: Content and Process

Asking questions can help advisors understand why the student came to advising, show empathy, and what the immediate need versus the long-term goal. Establishing a clear agenda or flow (a personalized routine) to be effective in assisting the student.

3) Plan for uninterrupted time during the advising session

Technology can cause potential disruptions that can interfere with advising a student. Give the students your undivided attention to show that they are important. Adequate time should be allowed so the student doesn't feel rushed.

The New Advisor Guidebook: https://nacada.ksu.edu/Resources/NACADA-Companion-Resources/New-Advisor-Guidebook.aspx

Link: https://nacada.ksu.edu/Resources/Pillars/CoreValues.aspx

Ethical Dilemma (Intergrity): While the state's initiatives for degree completion are needed, we must remember that the key players in all advising sessions are students. We must be honest about their degree plan, their requirements, and expectations if they desire to graduate. However, we are also agents of the university and must meet the state's goals and initiatives for our programs. I reflected on several ethical dilemmas, that can impact students if we aren't truthful about the state's goals.

1) Degree completion is not always in the best interest of a transfer student. Transfer agreements or guides have specific requirements that students must meet for admission. Some universities require a MAX of 60 hours to be transferred into some programs (Business, Engineering, Natural Sciences, etc.). Additionally, students who fail and retake classes for transfer may finish with more than 60 hours and can be impacted by this requirement.

2) Transferability: not all classes transfer to major-specific requirements. For students who are under an Associate of Science or Arts and desire to transfer, they will be advised according to the Board Policy for Collin College (for example) to complete their remaining requirements (electives and College options). However, not all colleges are unified in this process. Texas Core has made it easier for transfer students, but some classes still do not transfer. Additionally, 4-year institutions have the discretion to take the classes they desire for their degree plans.

3) Financial Barriers: Students receiving financial aid would essentially need to finish on time. Withdrawing, Dropping and failing courses can have a significant impact on a student's ability to complete their degree plan promptly. While completing an associate's degree at the 2-year may not impact them in the immediate, it can impact their ability to finish in the long run. The minimum degree hours for an undergraduate degree that financial aid will cover is between 120-150 hours. For associates, they will earn 60+ and must complete 60+ for their 4-year college.

4) Advisor training: Not every advisor receives formal training and mistakes can be made. To meet the state's goals, there must be universal advisor training to limit mistakes. Advising training programs depends on the college, the campus, the trainers, and the trainees. As a fellow trainer for my community college district, I see advisor mistakes all the time and the impact it has on students.

If we are to meet the state's goals, we must use the same language and support advisor training to prevent issues with negligence, lack of duty of care, and contract law issues in advising. To demonstrate Integrity, we must value honesty, transparency, and accountability to the student, institution, and the advising profession. Additionally, we must be aware of ethical and professional behavior in accordance with our relative practice (NACADA, 2017b).

Reflecting on the law and ethical reasoning of this course, I have listed the following points regarding my feelings from an advising perspective.

1) Knowing the law and my role and responsibilities is key to my job. There are some rules and regulations that impact my daily practice (written and unwritten) and I need to be comfortable acknowledging their importance.

2) Be honest: Mistakes, misunderstandings, and misconceptions will be made by both advisor and advisee based on the information we have at that time. It is important to be honest about what we know, who we can refer to, and where information can be found. It is also appropriate to let a student know the best resource for the issue they are experiencing if it is out of our scope.

3) Understanding and Empathy: Ethical dilemmas often require understanding and empathy. When making these determinations, we must ask ourselves reflective questions to ensure the immediate needs and best scenarios for the students. Case studies, advising scenarios, adequate training, and peers can assist us in making an ethical decision.

Advisors can utilize NACADA’s core competencies (2017a), core values (2017), and CAS Standards for Higher Education (2018) when seeking to address possible issues they will face in the field. Advisors, concerning the law and ethical principles of advising, must treat all students equally. However, advisors may face ethical situations and dilemmas, when advocating for student access, equity, diversity, and inclusion within the institution. Advisors can utilize the following strategies to assist in ethical and legal compliance decision-making.

Ethical Decision-Making Steps (Damminger, 2015)

1. Determine the real issues. Advisors must look at the situation from all perspectives and determine the issue at the root of the problem.

2. Research and consider all relevant policies 

3. Review all ethical principles (and legal)

4. Distinguish ethical from unethical behavior. Advisors must discern the course of action that most maximizes good and minimum harm. 

5. Be honest. An advisor who does not know the answer refers students to the appropriate resource that can help solve the dilemma

6. Consider all possible solutions and consequences of each

7. Document all actions related to the situation, not just problematic ones; keep all written and electronic files confidential and secure

8. Act in a timely manner 

9. Follow up as necessary 

10. Continue to review personal ethics and their relevance for the advising environment

AACRAO. (N.D.). Higher education act. 

https://www.aacrao.org/advocacy/issues/higher-education-act

Compliance Monitoring, Tex. Educ. Code § 61.035 (2013). 

https://statutes.capitol.texas.gov/Docs/ED/htm/ED.61.htm#61.035 

Council for the Advancement of Standards in Higher Education. (2019). Academic advising 

Programs.https://www.sbctc.edu/resources/documents/about/task-forces-work-groups/ctc-counselors/academic-advising-programs-2019.pdf   

Damminger, J.K. (2015). Ethical issues in advising. In P. Folsom, F. Yonder, and J.E. Joslin 

(Eds.), The new advisor guidebook: Mastering the art of academic advising (pp.55-66). Jossey-Bass.

Hendricks v. Clemson Univ., 578 S.E.2d 711 (S.C. 2003).

https://law.justia.com/cases/south-carolina/supreme-court/2003/25606.html

Higher Education Act of 1965, U.S.C. 20 § 3411 et seq. (1979). 

https://uscode.house.gov/view.xhtml?path=/prelim@title20/chapter48/subchapter2&edition=prelim

NACADA: The Global Community for Academic Advising. (2017b). NACADA core values of 

academic advising. https://nacada.ksu.edu/Resources/Pillars/CoreValues.aspx

Nutt, C.L. (2015). One-to-one advising. In P. Folsom, F. Yonder, and J.E. Joslin 

(Eds.), The new advisor guidebook: Mastering the art of academic advising (pp.251-266). Jossey-Bass.

Responsibilities of Institutions, 19 Tex. Admin. Code § 4.345 (2020) 

https://texreg.sos.state.tx.us/public/readtac$ext.TacPage?sl=R&app=9&p_dir=&p_rloc=&p_tloc=&p_ploc=&pg=1&p_tac=&ti=19&pt=1&ch=4&rl=345

Richards, M.M. (2008) Legal foundations of academic advising. In V.N. Gordan, W.R. Habley, 

T.J. Grites (Eds.), Academic advising: A comprehensive handbook (pp. 50-67). 

Jossey-Bass

Rust, M. (2015). Legal issues in academic advising. In P. Folsom, F. Yonder, and J.E. Joslin 

(Eds.), The new advisor guidebook:Mastering the art of academic advising (pp.159-176). 

Jossey-Bass

Scott v. Savers Property & Casualty Insurance Co., 262 Wis. 2d 127, 159-160 (Wis. 2003). https://law.justia.com/cases/wisconsin/supreme-court/2003/16560.html

State Funding: Performance Tier, Tex. Educ. Code § 130a.101 (2023). 

https://statutes.capitol.texas.gov/Docs/ED/htm/ED.130A.htm#130A.101 

Texas Association of School Boards (TASB). (n.d.). EFBA-Degrees and Certificates: Associate 

Degrees and Certificates. Collin College Board Policy Manual. 

https://pol.tasb.org/PolicyOnline/PolicyDetails?key=304&code=EFBA#legalTabContent 

Tex. Const. art. I, § 19. 

The Secretary’s Recognition of Accrediting Agencies, 34 C.F.R. § 602.1 (1965 & 1999). 

https://www.ecfr.gov/current/title-34/subtitle-B/chapter-VI/part-602 

U.S. Const. amend. XIV, § 1.