Ryan C. Holmes:
Yeah. But for the most part, we’re in the business of education, right? And so there’s gonna be a few things that, that come to mind for me, safety , access to programs, you know, the ability to deliver to students what we say we’re going to deliver from the safety department, you know, can all of the students, for the most part, enjoy the educational experience without having it being disrupted or infringed upon.

Keith Edwards:
Hello, and welcome to Student Affairs NOW. I’m your host, Keith Edwards. Today, we’re talking about legal issues in student affairs in higher education. I’m joined by three really smart and wise folks who are experts on legal scholarship, legal practice, and applying legal issues in student affairs practice. I’m so excited to learn from each of today. Student Affairs NOW is the premier podcast and online learning community for thousands of us who work in alongside or adjacent to the field of higher education and student affairs, we release new episodes every week on Wednesdays. Find details about this episode or browser archives at student affairs. Now.Com. This episode is brought to you by Stylus, visit stylus.com and use promo code SANow for 30% off and free shipping, this episode is also sponsored by Vector Solutions, formerly EverFi, the trusted partner for more than 2000 colleges and universities, Vector Solutions is a standard of care for student safety, wellbeing and inclusion. As I mentioned, I’m your host, Keith Edwards, my pronouns are he, him, his. I’m a speaker consultant and coach. And you can find out more about me at keithedwards.com. I’m broadcasting from Minneapolis, Minnesota at the intersections of the ancestral homelands of the Dakota and the Ojibwe peoples. I’m so excited to have our panelists and our guests introduce themselves and kick us off here. Ryan let’s begin in with you.

Ryan C. Holmes:
Well, first of all, I want to say thank you, Keith, for inviting me to be in this space. You know, anytime I get a chance to share space with John and Jessica, I mean, this is just, just wonderful. So Ryan Holmes my current position now is associate vice president of student affairs and Dean students at the University of Miami in Florida. So the areas of oversight me currently are student conduct and conflict resolution, Greek life student crisis response, alcohol and other drug education, veteran services, chaplains association for religious life. Previously I’ve also oversee the accommodations office and the counseling center. So pretty much anything that can get you in some type of legal trouble. You know, I think I’ve had some supervisor oversight or work within them. And so I’ve been in higher ed now for 18 years just happy to be here. And I’m also from Shreveport, Louisiana lived in Pennsylvania, the DC area Texas, and now I’m here in Florida. So varying views, but excited to be here looking to the conversation.

Keith Edwards:
Yeah. And Ryan and I first met long, long ago at the University of Maryland. So great to, to have you here. And then Jessica and I know each other from Colorado State. So Jessica, tell us a little bit about you.

Jessica Salazar:
Sure. yeah, thanks for the invitation Keith. It’s so good to be here with everybody. And Ryan, you described some of my favorite offices. I love working with of those folks. As far as some of my background, I have a master’s in higher ed administration. And then I went to law school afterwards. I’ve been working in higher education law exclusively for the past 16 years. And that’s all been with public institutions of higher education, so various sizes some community college systems and some very large division one institutions right now. I am an associate general council at Colorado School of Mind. And I am Colorado born and raised. So love everything about the state and again, just really happy to be here.

Keith Edwards:
Yeah, thanks for joining us. I really appreciate that. And then John, you and I have known each other through some, some writing projects around sexual violence prevention and some other things we should have mentioned that Ryan was as the previous chair of ASCA and you recently won an award at ASCA. So maybe you can work that into your introduction with us as well.

John Wesley Lowery:
Thanks, Keith. My name’s again, John Lowery, my pronouns are he and him. I teach now at Indiana University of Pennsylvania. That’s our original building that you see behind me for those who are watching the video. And I have been a graduate preparation faculty member for more than 20 years at IUP, but also the University of South Carolina and Oklahoma State University. And the courses that I teach regularly these days include history, student development, through contemporary and critical issues in higher education and legal issues in student affairs. In my research is in that area as well. A lot. I do a lot of work and have, since I was a graduate student around first amendment issues, it just happened that I was in grad school as a master student when the Clery Act passed. So I was sort of, there was a level playing field. Everybody was starting from zero and trying to help student affairs educators understand their obligations with that law and Ryan, and I know each other, both from both of us doing work in student conduct with ASCA where I was honored to be recognized this year as their Donald D. Garing award winner.

Keith Edwards:
Thank you. Well, great. Well, John let’s continue with you. As you mentioned, you’ve written extensively about legal issues in higher education taught about it, researched about it, presented on it led briefings and on court cases and legislation, and so much more what are some of the key areas that you think about in terms of legal issues for student affairs and higher education? How might we begin to kinda build the complexity here?

John Wesley Lowery:
The way I’ll frame it in fact is a way that it was framed for me by Don Garing, who I mentioned, I won an award named after who was the founding president of ASCA and I had one of my legal issues classes with Don. And I think we have to begin our discussion with questions of institutional control. It’s important that you understand the institutional control of your own institution. Are you at a public or private institution? That’s really where the conversation has to begin. And I think whenever you read a news article or something else describing a court case or a dispute in your, another institution, one of the questions you need to be asking yourself is, is this a public or private institution? Is it a for-profit that does change to some degree the regulation? And is it an institution that is controlled by religious organization?

John Wesley Lowery:
Because that’s going to add in some other complexities as well. So that that’s where we start. From there it becomes all right, you know, what type of institution you’re at the first sort of set of issues we have to consider are those that relate to constitutional issues, which are going to apply to agents of the state. So public institutions of higher education and in higher ed, particularly in student affairs, we spend most of our time paying attention to the first amendment and the protections for freedom of speech and free exercise of religion assembly. The inherent right of association are all significant areas over the last 60 or 70 years, the courts have really been looking at those issues specifically in the context of higher ed. In res life, but certainly not limited to res life. We’re concerned about fourth amendment issues of search and seizure.

John Wesley Lowery:
And also another consideration is the due process protections and equal protection protections under the 14th amendment. More recently, we’ve been paying attention also to how the Supreme court and states have been looking at issues related to the second amendment and firearms on campus. That’s a relatively new issue, but that’s one we have to consider as well. And at public institutions, there may also be additional provisions under your state constitution that are important for you to consider the next piece. And this does not just apply to public institutions is the federal regulation of higher education. And the primary means by which the federal government regulates higher education is through its ability to put conditions upon receipt of federal financial assistance. And in the context of higher education that federal financial assistance means not just direct funding to your institution, but your institution’s participation in the federal financial aid system.

John Wesley Lowery:
And as a result, when we talk about federal laws tied to participation in the financial aid system, we’re talking about every institution of higher education in the United States with a handful of exceptions, unless you’re working at Grove city or Hillsdale, your institution has to comply with FERPA. Your institution has to comply with the Clery Act, for example, and Title IX and the other nondiscrimination laws and states have laws as well. And generally they’re going to have a little bit more flexibility. It’s not uncommon. For example, to Pennsylvania has a state Cleary Act. And that applies to every institution of higher education in the United States, even City College, which is not a participant in the federal financial aid system. And when we talk about that, we’re really talking about two main things. One is the United States code. That’s the laws as they are passed by Congress.

John Wesley Lowery:
And that’s not for us a particularly helpful document. And then there’s the code of federal regulations, which is where the implementing regulations are published and those to a degree are much more helpful to us. And so often as practi is, it’s more helpful to think about those documents that are published in the federal register, particularly the commentary that accompanies them, which often is far in excess of the actual changes in the regulations themselves, the next consideration at, and this is particularly important at private institutions because the constitution doesn’t apply, doesn’t define the college student relationship, are contracts, what are the promises that we have made to our students and at private institutions, those become dominant at public institutions, they are still important. One because we can promise to our students and often do more than the constitution demands and we make promises in areas where there are no constitutional considerations.

John Wesley Lowery:
So contracts are important for everyone. They’re extra important for private institutions. And we spend a lot of time, I think concerned, rightfully so about issues of tort liability both tort liability for us as individuals and our institutions. Those are often the cases that grab the headlines when you see these massive findings for instiutions early on. So I, and for us, most often there, what we’re looking at are cases that involve claims of negligence or defamation. And then the last area that I would point to are the courts and the courts in part of their role is to interpret all of the things I justed. And I think with particularly those who don’t have a, a strong background in legal issues, one of the things to understand is who in its back to this idea of control, is this a court who’s handed down a ruling that actually has jurisdiction over you?

John Wesley Lowery:
Obviously the Supreme court has jurisdiction over the whole country, but I can remember in the nineties, when the us court of appeals for the fifth circuit handed down, its Hopwood, affirmative action decision people all around the country were ringing their hands and asking whether or not they had to change their policies. And the question was no, because they weren’t in the fifth circuit and they certainly should pay attention to those decisions in other parts of the country, but they aren’t controlling in the same way. So I would say broadly thinking about this institutional control, particularly of public institutions, understanding the constitutional issues, looking at federal and state regulation of higher education understanding contracts, really thinking that about that as what are the promises that we’ve made to our students for liability in terms of negligence and defamation, and then having a better understanding of the courts as sort of as the arbiter of at least one of the arbiter of what those various elements mean.

Keith Edwards:
Yeah. Well thank you. That is awesome. We see why you get these awards, your clarity of thinking and able to take all these complex things and really make them really easy to understand for people, people who are less familiar, we’d like to get Jessica and Ryan to muddy this water a little bit. Jessica, what would you like to add to what John’s sharing? And then we’ll turn to Ryan.

Jessica Salazar:
I mean, I think I, I totally agree with everything that John mentioned. I would just add that you know, the complexity of all of this and how it meshes together. So many times I have folks coming to my office and saying, well, you know, the University of Notre Dame did this and they said it was okay and working at a public institution and trying to make that distinction, it can be really, really complex, confusing, and completely dissatisfying. So trying to, to get through that can be difficult. And then also the,

Keith Edwards:
Is that, is that difficulty because Notre Dame’s private and you’re at a public it’s in a different state, different court districts, different constitutions, is that what makes that really different?

Jessica Salazar:
All of those things plus it’s religious. So that puts another layer on top of it. The other aspect of is the handing hand ringing that John was talking about you know, notoriously the sixth circuit always has these decisions that has everybody up in arms, you know, panicking a little bit and, and do we have to change our policies and what does this mean for us, but really talking about that jurisdiction piece, which gets completely confusing when you have a state ruling on something versus a federal ruling on something else. And trying to, again, mesh those things together. It becomes soupy for lack of a better word, but yeah, it’s, it’s interesting.

Keith Edwards:
Yeah. Thank you. Thank you for, for adding that complexity. Ryan, what would you want to add here?

Ryan C. Holmes:
Okay. See, this is the part where I’m just happy to be here with This is also the part that I’m happy to be here. Someone like John who understand these things forward and backwards from, from a scholarly perspective, everything that they’ve said, I totally agree with to make it, it even muddier though, I will say, then you add people.

Ryan C. Holmes:
It, the, the laws, you know, can be interpreted in, you know, in the majority of ways that people would agree with. There’s also some people who may interpret on the outside of things, right. Policy the same way, but then when you have people and motives and the bent that may come from a certain tradition or a certain like, you know, population or campus history, those types of things that makes it even muddier. And so I would say probably the difference between Cal Berkeley and the Texas A&M will be very immense, that things may hit certain campuses, the way that people where react, you know, and, and it’s not to highlight those two institutions, but I believe that we could agree that, you know, the, the spirit of the places are different, not bad, not good, just different. When you think about geographic location, when you think about the makeup of the folks who are on the campuses, the diversity though, on the campuses, the histories, the traditions, and then you put on of that in the midst of, is it a public, is it a private, when you think about what court decisions in certain states versus another state may happen, what happens at the Supreme court?

Ryan C. Holmes:
All of this turns into this, this big stew that has a whole lot of different flavors, gotta eat it at some point and our lines. So I just, just add that to that, you know, for early on. And I think my, of colleagues here for the frighten.

Keith Edwards:
Well, I wondered how long it take you to get to gumbo, but you did it right there. Right? We got to soup metaphor stew, right there, back to home. There you go. Well, Jessica, you’re practicing attorney in higher ed. You’ve done that in a attorney General’s office. You’ve done it at a multiple different institution as the person in the role of the attorney that, that gets these requests and, and hears about this handwriting. What do you wish practitioners better understood about legal issues? Maybe just how legal issues function in generally, or maybe particular things.

Jessica Salazar:
So I’m gonna start off with one that is completely selfish for my part and any of my other colleagues that work in higher ed law. The, one of the primary pieces that I wish practitioners would keep in mind is that every record that you create could possibly be an exhibit in court. And I think that in many institutions, especially public institutions, there are open records laws where folks can request all of the emails that the president sent to so, and so from this time to this time, and we’ve gotta turn them over that can come as quite as a shot, as shock to some folks when everything is out there in the open like that. So that’s one of the things I really try to emphasize in working is it’s okay to pick up the phone as you’re drafting emails, take the time to really look at it, send it after some thoughtful consideration and, and then follow your document retention policy.

Jessica Salazar:
So that’s my PSA, totally selfish on my part, reduce my amount of work. The other piece is, is really how legal issues have been changing so quickly in recent histories. I think that in the past, you know, things maybe stayed consistent for a while and didn’t change as quickly, but we are seeing a lot of really rapid changes at the federal level at the state level. I think that a partisanship is coming to lot more when it comes to states pushing back on federal legislation that perhaps they don’t agree with trying to structure things in a different way. And we’re saying things shift quite a bit. So when the Civil Rights Act of 1964 was passed, I think there was a particular intent and it is being it is being applied in a much different way than I believe that the intent was articulated.

Jessica Salazar:
So with that in mind, I do wish that practitioners would know that the general counsel’s office is open for discussions at any time. Maybe we have a policy that’s been in place for 10/15 years, and it’s always good to take a look at that. See if there are things that need to be updated and really try to work on that collaborative relationship to find a path forward that works for everybody, because what worked five years ago might be completely different now. And it’s, again, it’s happening so quickly with so many different things. It’s very difficult to keep on track of it all.

Keith Edwards:
And is that change, as you said, is that more partisan political environment where people are rather than saying, well, that’s settled law, we’re gonna change it and we’re gonna adjust it. And a new party comes into control and changes. It is that really what’s driving that increased pace of change.

Jessica Salazar:
You know, it feels like it, I can say that with Title IX, that really feels like that’s the case. You know, we had some their colleague letter guidance that came about in 2011 and we all scrambled to change our approach and make sure, sure certain things were in place. We felt comfortable with it. And then it completely flipped. And we had to change again in 20, okay, this is all blending. It was a 2020 when we had to change that. Anything from March 2020 feels like the same, but we had to change the regulations, create a hearing process all in 90 days during the middle of a pandemic. And now we are waiting for new guidance to come down from the Biden administration as to what might stay the same and might be open to adjustment.

Keith Edwards:
Well, and now we see with the shifts in the Supreme court, seems like a lot of old things that seem to be settled law are coming back again to be revisited by by the court for people who feel like they’ll get a more favorable ruling from their perspective this time.

Jessica Salazar:
Absolutely. And I think there’s a lot of selection in terms of where things are filed to find a, you know, a friendly circuit or a friendly court.

Keith Edwards:
Yeah. Ryan and John, what would you add in here? What, what do you hear about practitioners? What do we wish practitioners would better understand about legal issues in addition to what Jessicas sharing. Ryan let’s start with you?

Ryan C. Holmes:
Well, you know, I was actually hoping that we can defer to John here cause you know, I know that I’m gonna have, and I’m gonna do a little bit, little bit better. The thing that I wish that a lot of practitioners I would just say knew about legal issues is that for the most not lawyers

Ryan C. Holmes:
And, and so there’s ways to engage, you know, these things like, you know, these legal matters, these legal issues and the, before that they’re engaged in. And I think sometimes if you, someone like myself who has taught, you know, higher ed law and policy, and has also taught ethics courses, if you don’t watch it, you can know Jess enough to be dangerous. And I also think that as a practitioner and I have not gotten everything right, but I still got a job, but I’ve never been court document. I do some things, right. I think that practitioners would do well to note, when to consult your general counsel. And sometimes it’s, you know, more often than not that you may want to do that rather than getting yourself in a position where you have to get bailed out of something. But I would also say this too depends on the culture of your institution, sometime a general council or your, or your, your legal advice can be just that advice.

Ryan C. Holmes:
Right? Because we charge with knowing what our work is and we’re supposed of our work is but there’s also some institutions where, you know, the legal advisor or the general council, it could be seen as a super administrator. Right. And I think that is less based on the individual and more based on what the culture of your institution is. I worked in both and, and part of being the practitioner is kind of knowing where you are and knowing how to maintain, maintain station while also being effective. Right. While also know on what you need to be up on what you need to be studying, just because something may be happening in North Carolina and you’re living in a state of Florida, like I am, but doesn’t mean that doesn’t have any implications on the things that you’re going to do now or what you’re gonna have to do, because these have a way of impacting the country.

Ryan C. Holmes:
Right? Yeah. And so it’s, it’s, I think we, it behooves all of us to know, not just about where you are, but the things that are happening around you, each court case, you know, even I’ll even say each like, you know, a OCR letter, if it comes, anything that is that can, can impact you, you know, it used to be for years. And John knows about this, I’m sure you do as well. Jessica, when say the spring, a letter came out, that letter laid the foundation for a lot of things. Universities had to think about how you require students to give so of them that you may not otherwise ask them to provide, just because you think that there’s some concerns there. So those types of things happen, even if it’s not in your backyard, you want to be, you know, cognizant of it because it may be in your backyard sometimes as a practitioner. That’s what I would probably answer that.

Keith Edwards:
I really appreciate the point about general counsel’s offices and how they operate, how accessible they are or not, whether they’re offering advice or decrees or not really changes. And, and I’ve gotten caught up in that myself going from here’s, how we operate at this institution and thinking that’s how that works. And then going to another institution operating that same way and then finding out, oh, no, that’s not, that works. That’s a completely different thing. So I think it’s a really great sort of recognition for folks to pay attention to, particularly as we move from institution to institution, John, anything you find yourself wanting to remind practitioners about?

John Wesley Lowery:
A couple of things come to mind. I think one, there’s the issue of culture as it relates to the general council, but it can also be a factor of, I have worked. I worked at Washington University in St. Louis, a large private institution. And our general council’s office was essentially a small law firm. I went from there to Adrian College in Michigan who had an attorney in town on retainer. And if you’re at those small private institutions, you’re gonna have a much more limited access to your general counsel. The other thing I would say is, I think Jessica’s background is it’s important to understand that’s unique among general counsels to have a general counsel who was an administrator and has a background in student affairs. Particularly if you have a small general counsel’s office, there are a number of other legal issues that are far more significant to the practice of higher education law than student affairs related issues.

John Wesley Lowery:
The other thing that I would add in, in working with counsel one of the best pieces of advice that a colleague of my mine gave Ed Stoner was I never want to learn about the case on the way to the courthouse, which goes back to I think, but both what Jessica and Ryan were talking about, about consulting early with attorneys. The other piece though, and it’s gonna depend some on institutional culture is how we frame the question. I don’t believe that the attorney should be making a decision about which approach is educationally appropriate. I think the attorney’s role is to help us understand and manage institutional risk. So in many cases, it’s a matter of not asking, should we do X or Y because attorneys by their nature are risk averse and they’re going to choose the least risky, which may also be the least educational of the options. And instead, the question is, this is what we’re thinking about doing, how can we manage this in a way to best protect the institution? Are there landmines that we aren’t seeing that we ought to be aware of? So I think it’s some of, it’s also about how best to ask questions.

Jessica Salazar:
Absolutely. I totally agree with that. I think if folks come to my office and they say, can we do X as much different than this is what we want to achieve? How do we get there? And these are some ideas that we have on how to get there. So if we have options to work with, it’s much easier to identify those risks than if we’re trying to just answer one specific question.

Ryan C. Holmes:
And I agree with my colleagues wholeheartedly. The one other question I’d like to ask sometimes whether my current role or in previous roles is specifically, if I’m dealing with general counsel attorneys, can you defend this? Because there’s one thing that you’re thinking about what you want to do. It’s another thing to know what you have in mind, but sometimes at least in my experience, and only only mind is that, can you defend this? Because sometimes general counsel might be like, you know what, Hey, no problem. You know, this what we want to do. Hey, it’s easy to defensive. Sometimes it may say, well, we can, but here are the obstacles in that if it goes in this particular, and I think those are important educational conversations specifically when you’re dealing with such diverse people and sections of a university that you have with, because I’m sure all of us are for me with situations where we’ll make work well for the student population in this area might not necessarily work so well for a department or a division for these things. So how to reconcile all of that. And I think it has a lot, lot to do with that too, but can you defend me well.

John Wesley Lowery:
I think at times, particularly with the most difficult of situations, we’re really in a position where we are gonna face a lawsuit, no matter what we do. And I think that’s back, it’s not, can you defend this, but is there one of these, you know, if we have to choose between these two, which one is a better option for us in that scenario, and this often comes up and think by in situations when we have two students in conflict, for example, and it’s a very serious conflict and, and we’re facing competing demands about how we resolve that, no matter what we do, we’re likely to be sued.

Ryan C. Holmes:
You also mentioned title and the dear Coley letter, that, that came up a lot in a lot of the earlier time cases, like we’re going to get sued, be sued by the accused attorney, or do we want to be sued by the person who is the accuser feeling as though the university has not necessarily, you know, had a process to go the way it should go. I mean, those are big things. And so other things that are popping up there used to be a time and it still may be that ADA concerns were the most prevalent that you had, you know, coming out of the DOE, I don’t know, to this day and this year, you know, Title IX, you know, ADA you know we talk about freedom of speech. We haven’t talked about that yet, but pressure. I mean, that’s always one, right? That’s a lot of, lot of, lot of frequency that comes with it. And a lot of situation that come with this, I agree with everything my colleagues are saying,

Keith Edwards:
Well, we’ve already started on this path. We’ll just let you here, Ryan, you, as you said, you navigate the people part of this in your role and the complex functional areas that you’re a part of and, and, and lead, and you navigate the people formal and informal each day in your role at a very large and complex institution. What do you wish legal council understood about the practical applications in real life? What else would you want add?

Ryan C. Holmes:
Well, I, I think John, John hit on it’s hit on it as, as well here. The way I want to approach is this, when you’re dealing with attorneys specifically in my somebody’s trying to, so right there there’s like sides. I mean, the, for the most part, when I’ve seen attorneys at play, that there is at least two sides, trying to make sure that the pendulum kind of swings toward where they are, right. As a practitioner, do I care about it? Yeah. But for the most part, we’re in the business of education, right? And so there’s gonna be a few things that, that come to mind for me, safety , access to programs, you know, the ability to deliver to students what we say we’re going to deliver from the safety department, you know, can all of the students, for the most part, enjoy the educational experience without having it being disrupted or infringed upon.

Ryan C. Holmes:
Now in the situations I’ve dealt with, let’s just take conduct for example, right? Say somebody’s done something that may be a policy violation in some cases may even be against the law. Cause a lot of your policies are steeped in law, right? And you have who complains and says, this is a policy violation. We want this dealt with. Yeah, it’s a violation. We gotta figure out what it is. We got to do the process, you know, but there’s also gonna be a person who is saying that, well, maybe I did this because I think I have a right to do this. And the policy may say something, I’m speaking in the context of, they say this, but I have a legal right to, to do this. Right. It’s not just about coming up with a finding. And the private is easier because going back to what John said, we have a contract.

Ryan C. Holmes:
We told you what we were gonna do. We told you how we’re gonna do it. We told you we can’t do it. But even after that is done, right, we still got people that we have to try to make whole in the community. We have to restore the best, but we know how to do it. Right. And that may not necessarily jive well with someone who’s had the accusers still have to see a person on the campus for whatever it may be. And, and having those conversations. I mean, in certain cases, even just the waiver to have those conversations, right? Because students records, you know, they belong to them, right. It’s too loose with things. And we started talking to, to their attorney without their permission, or we start talking, do their professors without their permission. But worry about those things from a legal standpoint.

Ryan C. Holmes:
Now, not just from an educational standpoint. Also what I would like, you know, an attorney when it comes down to the practical applications to understand is how many others may be a part of the situation. Right. We can say something very simple. Let just say somebody tears down a bulletin board in a hall, right. If there’s an attorney involved and trust me back 15 years ago, you wouldn’t even see this. I mean, attorney would never take these types of cases because it’s like, well, this is something very, very simple. Now it’s hard for me to even have a conversation with the student one on one, without some attorney being involved, right. For the simplest of matters. And I, a lot of that has to do with affluence too, can afford those things. So I want to make sure I bring that into the room too.

Ryan C. Holmes:
But the reason why I’m bringing this up is because it’s not just about the person who to this bulletin board down, it’s not just about the RA, who was disturbed on the floor, you know, how safe they feel now add another wrinkle to it, save the person like, you know, is an athletics or whatnot, or it’s in the, we have a lot of athletes now athletics kinda wants to know what’s going on. So from a practitioner standpoint, we are charged with juggling all of those particular things that we may have to explain to somebody being represented by someone. Right. Whereas sometimes the part of the conversation may be okay, well it’s done, we’ve come up with solution. Can we just make these things go away? Right, right. There, there’s a, there’s a disconnect maybe sometimes, you know, in, in those particular portions. And we brought up the different between the private and the public.

Ryan C. Holmes:
I will go on record and saying this I think there’s blessings and curses to both now that I work at a private right. Whatever the contract says, based on the contract law statements that John made earlier, that’s what we are, that’s what we’re gonna do. Whereas when you’re at a private is not as clean, sometimes at a public record is clean in order to do that. And, and I’m just gonna give one more example. We had a situation at the University of Miami, you know, I want to say it was last year, maybe a year and a half ago, whenever the election period was for presidential elections, right? And this is public. So I’m not, not speaking outta school here where we had one of our student groups who was in favor of one candidate since there were no rule or policy on how many signs you can put, you know, in in a quad space filled the whole quad up, it was about 200 signs for a particular candidate right.

Ryan C. Holmes:
The way students were impacted though, who were for another candidate or felt as though this particular candidate was not just a presidential candidate, but really attacked them from marginalized spaces that impacted a great deal as a private, we can say, oh, we see the impact on student. Let’s just go ahead and put something in place here that says you can only have 20 signs in a space because it’s gonna minimize the impact and still get the message across. You’re not signing in anybody’s voice. They still have to have their say, get to have their say. So doesn’t make it a chilly environment for someone else. Can you imagine that we had to been on a public campus, made the same decision, how many students would’ve probably been able to say, well, I feel as though our freedom of speech and expression impacted and how many, like, you know lawyers or attorneys may be involved in that and how many types of hearings could have been involved in that. So as blessing and curses for both, but the flip side is this. So as a practitioner, we cheat our students out of ways to actually spend spend time taking up for themselves, actually experiencing their voice, actually understanding what it feels like to not have certain protections that a college will provide this pros and cons to both of environment has a lot to do with that.

Keith Edwards:
I want to try and move us to some of the emerging issues before I do Jessica and John, anything you want to add here to Ryan’s giving voice to.

John Wesley Lowery:
The one thing that occurs to me and it really has to do with this idea of large and complex organizations, particularly the ones that are decentralized and in light of the seesawing back and forth that Jessica was describing earlier with title nine. We really have to be paying attention as an institution to the fact that there may well be multiple policies and we may have corrected or, or dealt with the issues related to our Title IX policy, but have we paid attention to every other policy that touches that? And do we have not, not only institutional policies, but are there departmental policies that we need to be paying attention to on the academic side, do we have a, a medical school or a law school that doesn’t think that any of the institutional policies should apply to them and they should have all their own policies? I think that sort of the inter between all these various policies at the institution adds a level of complexity at particularly at large institutions that I think we wouldn’t see as often at smaller institutions.

Keith Edwards:
I think you’re pointing to how the spider web just keeps going and going and going connected to so many things. Jessica, you want to add anything here?

Jessica Salazar:
Yeah. I just wanted to add that. I think one of the most challenging aspects of this area is when the law in that educational piece don’t mix or there’s conflict there. We see that a lot with free speech issues on the public campus, or sometimes that speech creeps into the realm of bias, but not so far that it’s something that we can take action on under the law. But we still know that there’s a huge population on campus that’s being impacted. And so how do we manage that educational piece as well? While knowing that’s students are hurting, can be challenging.

Keith Edwards:
Yes. Thank you. Well I want to give each of you a little bit of time to talk about we’ve really laid the foundation really well. Just thinking about legal issues, how to think about them, how to apply them. Some of the big factors really appreciate that, but I’d love to hear from each of you, what are some of the emerging issues you see coming up or on the horizon for higher ed and student affairs practitioners, and John, we’re gonna start with you.

John Wesley Lowery:
Thanks. We’ve already talked about Title IX and that seesawing, but I think one of the things that’s happened as a result of that is suddenly people are paying more attention to the Clery Act because there are specific provisions of the Clery Act related to sexual assault as well. And we saw at the very tail end of the Trump administration, they withdrew the Clery Act handbook and replaced this 250 page document with a 13 page FAQ. And I think we’re surprised that that higher, the higher education community didn’t stand up and cheer that decision in part, because while there were issues with the Clery Act handbook and things I disagreed with as a general rule, it did provide helpful guidance and left institutions, at least having some sense of what they needed to do as with Title IX.

John Wesley Lowery:
The question will be whether or not the current administration seeks to revisit that issue. They have not been as clear about that as they have Title IX, but the two have implications for one another. So I think what happens there, we’ve already mentioned state government micromanagement of politically charged issues on college campuses. Critical Race Theory started focused on K through 12, but we’re now starting to see states talking about that multiple states talking about that sexual assault, student freedom of expression and protest. There, there are a couple of states that seem to be in a race to see who can come up with the newest worst idea. And Ryan’s lucky enough to be in one of those states, but not at a public institution since it, the latest idea in Florida was the idea that we would require institutions to change their accrediting agency, every cycle.

John Wesley Lowery:
And so I think that makes it much harder to get our hands around what’s happening, because it’s happening so much of it’s at the state level, but a point that Ryan made before I think is important there, if you see a bad idea in another state gain traction, somebody in your state see that, and they’re gonna pick up on that idea. And in fact, there are a, our policy networks on both sides of the political spectrum that are really dedicated to sharing those ideas across states. So if it hasn’t happened to you yet, you’re just lucky that it hasn’t happened to you yet in your state. So that’s, and then the last thing that I’ll mention is where we end up with the Supreme court, as it relates to affirmative action. The Supreme courts agreed to take two cases, one in call involving Harvard, one involving the University of North Carolina, both brought by in essence, the same group and the same activist bankroll in both of those cases and what will that for a subset of American higher education, because at least when we talk about affirmative action and admissions, we’re really talking about roughly 300 highly selective institutions of higher education in the United States that are making admissions decisions in that way, depending on how the case plays out, it could have significant consequences beyond those institutions, as those principles are potentially applied to other decisions that you might make.

John Wesley Lowery:
How we designed programs to encourage the participation of women in stem fields or students of color in a wide variety of fields. That part will be sort of trickle down that will impact a much larger segment of higher education.

Keith Edwards:
Great. Jessica, what do you see on the horizon or emerging?

Jessica Salazar:
So all of the things that John said, and, and I would say that what we’re seeing a lot of is the, those scholarships in the programs to help open some doors, being challenged quite a bit, and they do come, or at least they seem to come from the same entities, but we’re seeing quite a few of those challenges being filed with OCR lots and lots of institutions responding and trying to navigate through that because even the guidance that we have from OCR regarding scholarships in this area, it’s a little vague trying to figure out what that means and still, still promote the mission of particular institutions. So that’s a big one for, for me right now.

Keith Edwards:
Great.

John Wesley Lowery:
And not just organizations in some cases, just one person. There there’s one person who’s filed, I think 50 or 60 complaints with the US department of educations office for civil rights on these types of scholarship programs. And they’re based on nothing more, then the information that appears on the institution’s website.

Jessica Salazar:
Absolutely. I don’t know if we’re talking about the same person, John, but I’ve heard also another person who’s filed about 240.

Keith Edwards:
Well, I hope it’s the same person. If not we have two people who are a lot of time on the hands it’s challenge some of these these programs trying to achieve equity.

John Wesley Lowery:
Well, and it’s, it’s worked the other way as well. There was an individual or an organization that was regularly filing complaints with the US department of education for a number of years about accessibility of institutional websites, for those with visual disabilities. And that was, you know, a very small group of activists who were using the process to hold institutions, feet to the fire in a way that wasn’t happening otherwise. And that was it. I think. Hundreds of complaints.

Keith Edwards:
Yeah. Ryan, what do you see emerging or what do you hope is emerging? Do you, do you sit around and cross your fingers about legislation or court decisions or federal guidance that would really help you better serve students?

Ryan C. Holmes:
Well, from the hope standpoint, I haven’t gotten there yet. You know, I’d like to answer the question just a slightly different way, right. Not necessarily what an emerging legal issue is, but what is probably laying a foundation of groundwork for, to emerge if that’s OK. So, so what my mind is right now is that when we think about, I want to say Title IX may have been one of the first spaces that said a university I should have known right. There was the language there when something was going on, merge that with what we’ve seen in the mental health space and how universities have changed over time with universities are really starting to turn into caretakers. When it comes down to students, we’ve seen this a great deal in the pandemic where university had to do quarantine and isolation. They have to have different testing and resources and, you know, university been very, very much involved in the day to day lives of students in the care area.

Ryan C. Holmes:
It is one of the things that’s on my mind that I fear that when you start to double that known or should have known when the universities or colleges are getting that involved in students lives that if something is missed, say a student is hurt or hurts themselves specifically in a mental health area that the questions can’t be asked where was the university? Or I did a university with all of the new staff and the new positions that have been created, why wasn’t this they would be detected or, or dealt with. I see that being probably a legal issue space at some point. The closest I’ve been able to see would be fraternity these sororities and hazing a great deal of universities and colleges have not necessarily been, been handcuffed with a great deal of the, the worst tragedies because fraternity and sororities have been seen as independent entities working outside of even with connected to universities. But when you put like mental health and housing and counseling centers, a case management, a social worker, you have universities that are really in these spaces. That’s one of the things that I would probably say we could see a lot of legal issues emerging out of the university knowledge of student behavior and not necessarily addressing some of the things we didn’t even see it, but to be perceived as though it could have been avoided and it was not. So that’s where I am, yeah.

Keith Edwards:
Great, great. That’s one of the things we’re, we’re seeing in many of the conversations we’re having about increased mental health and then increased case management, hiring case managers, hiring social workers, moving that direction to really tend to all of these needs and then that our desire to better serve students than opens other Pandora’s box about liability and other things coming in here. Well, we’re, we’re running out of time but this podcast is called Student Affairs NOW. So I always like to end by asking our guests, what are you thinking troubling or pondering now might be something that is really relevant in your professional realm, or maybe something that’s just on top of mind as a result of this conversation. So, and to folks want to share where people can connect with you, you can do that as well, right? Ryan, let’s start with you.

Ryan C. Holmes:
Okay. For me, I mean the only thing that’s really on my mind is not necessarily connected to this particular conversation is when we get back just, just to normal, you know, when we start past conversations, when we can actually start being back in social spaces that a lot of colleges and universities really pride our on as a part of other education. So I do think about that and to catch me is, is pretty easy. You know Twitter is @RC_Homes or via email here. Ryan Holmes is one word lower case at Miami I EDU. And looking forward to following up with all conversations at again Keith, I can’t say enough, thank you for the invitation. I really, to really enjoy the chance I got to spend time with Jessica and John too. So thank you.

Keith Edwards:
Yeah. Thank you so much for being here, Jessica, what are you pondering now?

Jessica Salazar:
Oh let’s see. Lots of things, but the conversation that we started about free speech has me thinking a little bit about the upcoming midterm elections and just getting ramped up for that and what free speech implications might be in place especially as more people are returning to campus and feeling like maybe it’s in a different realm than the other election in those. And I, yeah, go ahead.

Keith Edwards:
I think we’re just seeing a lot of people feeling much more emboldened to advocate and advocate forcily for their perspective. Just in the ether of what’s going on and the news and the role models and social media. And even if their side’s not doing it, they, I see the other side and say, well, if they can do it, why can’t I, so I think I think you’re onto something there. What else were you gonna add?

Jessica Salazar:
Oh, I was just gonna say I am not on Twitter, but I can be reached by emai JCChavezSalazar@minds.edu. Awesome. And thank you for having us. It was really fun.

Keith Edwards:
Yeah. Thank you for being here. Yeah. John, what are you troubling now?

John Wesley Lowery:
I think I spent a lot of time thinking about this evolution of how we view higher ed as is it a public or private good, but more recently, I think what I’m really seeing and you see it evidenced at both the, the state and the federal level is a, a fundamental distrust of institutions of higher education among other institutions. And I think we’re beginning to see in this sort of broader political culture, war, higher education, being one of those things, that’s an easy target. You can win points with your side, if you a particular perspective that faculty are evil leftists who are poisoning our children. And I think that’s, what’s led to a lot of these bills being introduced in, in a number of these states. I don’t think it’s about necessarily fixing some problem. The member of the legislature actually sees, but it’s a way to score points, right. And to win recognition for their willingness to go further than anyone else has.

Keith Edwards:
Right.

John Wesley Lowery:
And it’s a race to the bottom that in the end, nobody wins them.

Keith Edwards:
Yeah.

John Wesley Lowery:
And you can find me on Twitter. It’s Dr. JW Lowery, or you can find me, you can email me at IUP. It’s JLowery@iup.edu.

Keith Edwards:
Awesome.

John Wesley Lowery:
And again, thanks for the invitation. It’s always fun to get together with other people and talk about these issues in part, because there’s the famous quote. And now that I decided I was gonna say it, I can’t remember who said it. The law never is the always the law is always about to be, this is one of those ever evolving areas that if it’s something you pay attention to something new is always happening, that is demanding our attention as well.

Keith Edwards:
Well, thank you. Think to each of you. I love that we were able to pull together three people who really think about this, but think about it from very different angles and great to hear your shared perspectives and your approaches and your thinking and your wisdom and advice. So this has been terrific. Thanks to each of you so much. Thanks to our sponsors of today’s episode as well. Stylus and Vector Solutions. Stylus is proud to be a sponsor of the student affairs. Now podcast browse their student affairs, diversity and professional development titles at styluspub.com use promo code SANow for 30%, all of all books plus free shipping, you can also find stylists on Facebook, YouTube, Instagram, LinkedIn, and Twitter @styluspub. Vector Solutions. How will your institution rise to reach today’s socially conscious generation? These students report commitments to safety, wellbeing, and inclusion are as important as academic rigor when selecting a college as time to re edge and the work of student affairs and as an investment, not an expense. For over 20 years Vector Solutions, which now includes the campus prevention network,

Keith Edwards:
formally EverFi has been the partner of choice for 2000 and more colleges, universities, and national organizations with nine efficacy studies behind our courses. You can trust and have full confidence that you’re using the standard care or student safety, wellbeing, and inclusion transform the future of your institution and the community you serve learn more at vectorsolutions.com/studentaffairsnow. Huge shout out to Nat Ambrosey the production assistant of the podcast who does all the behind the scenes work to make us all look and sound good. And if you’re listening today, and not already receiving our newsletter, please visit website at studentaffairsnow.com scroll to the bottom of the homepage to add your email to our MailChimp list while you’re there, check out our archives. I’m Keith Edwards. Thanks again to the fabulous guest today and to everyone who’s watching and listening, make it a great week. Thanks. All.

When you collapse an accordion item and save, it will automatically display collapsed in front end