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SUNY counsel reviews issues
By DONNA LONGENECKER
Reporter Assistant Editor
As UB faculty members go about the business of teaching and research, they must be sensitive to a myriad of legal issues that could potentially impact their career and the education of students, Lewis E. Rosenthal, SUNY associate legal counsel, told the Faculty Senate on Tuesday during the body's final meeting of the academic year.
Affirmative action, sexual harassment, academic freedom, the rights of disabled students and privacy rights comprise the top five issues facing faculty members, Rosenthal told senators. He cited a host of cases as examples of the various ways courts may either rule in favor of the academic institution or against it as cautionary tales on how to best proceed—or not to—for an optimal outcome in complex legal situations.
With affirmative action topping the list, Rosenthal, whose areas of specialization include labor and employment law, academic freedom and constitutional issues, reviewed two recent U.S. Supreme Court decisions regarding the University of Michigan's admissions policies. The court decided in favor of the Michigan law school's policies, but found its undergraduate admissions policies unconstitutional.
"Affirmative action is a very significant issue," said Rosenthal, adding that although the Supreme Court's decisions raised more questions than were settled, the court clarified how racial classifications in admissions policies can be used by colleges and universities to meet diversity goals.
"The University of Michigan was tortured over a 20-year period with trying to come up with some scheme to figure out how it could admit a diverse student body," said Rosenthal. Undergraduate minorities applying to the university were given a 20-point bonus based on ethnicity—which is now no longer allowed. The Supreme Court ruled that it wasn't constitutionally permissible, with the caveat that racial classifications must meet two tests: Such classifications must further a compelling governmental interest and must be narrowly tailored to further that interest, said Rosenthal.
"If you do it, you have to do it in a holistic, individualized, light-handed, non-mechanical way," Rosenthal said of race-based admission policies. He noted that the UB School of Medicine and Biomedical Sciences is reviewing its admissions policies.
The Supreme Court upheld Michigan's law school admission policy because it didn't use quotas—every application was reviewed individually, he said.
Another hot topic on college campuses is sexual harassment, Rosenthal noted. "You can't turn a page in a newspaper without seeing some article about sexual harassment and this affects everyone," he said.
"The rule of law is very simple here: If your supervisor takes a tangible employment action against you ("lowering your salary, firing you, touching you") and it is sexual harassment, the employer's got no defense if it's proven. That's the simple one," said Rosenthal.
But things get trickier when an employee wants to prove that a hostile working environment exists. The employer is going to be liable unless it can be proved that "the employer exercised reasonable care to prevent and correct any harassment, and the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise," said Rosenthal.
"You (UB faculty members) have a serious and substantial office of affirmative action that educates people about those issues and is available to review and investigate those complaints."
If a defendant is able to establish in a lawsuit that the employee did not make a complaint to an affirmative action office, the lawsuit may be successful for the defendant, said Rosenthal.
"It's not just that we're looking for success in lawsuits. We're also looking to create an environment where people can learn and work effectively because the one thing that I think is true in all the cases I've been involved in where you have a hostile environment, real work is not getting done. So, if you can clean out those problems, then you're going to have a more effective campus, he said.
And, he pointed out, "One (off-color) remark does not create a hostile environment, but I'm not encouraging anyone to be a jerk, either."