Presentation on theme: "Legal and Ethical Aspects of Academic Advising"— Presentation transcript:
1 Legal and Ethical Aspects of Academic Advising Joanne K. Damminger, EdDSalem Community CollegeNACADA Summer Institute 2011Thank you to K. Boston, R. Soto and K. Stockwell who contributed in the past to the content of this presentation.
2 Note: Slides are intended to serve as comprehensive notes. ObjectivesParticipants will have an increased understanding of:Definitions related to Ethics and LegalitiesLegal Foundations of AdvisingFive Ethical IdealsEthical PrinciplesResolving Ethical DilemmasLegal ImplicationsTopic that is interesting but confusing…Note: Slides are intended to serve as comprehensive notes.
3 What is Ethics? The study and philosophy of human conduct According to Webster, ethics isThe study and philosophy of human conductA basic principle of right actionA system of moral principles or valuesThe study of the general nature of morals and the specific moral choices an individual makes in relating to othersThe rules or standards of conduct governing the members of a profession.Ask audience…what is ethics?Bullet #4 – study of morals and moral choices
4 Simply stated, “How should people act?” What is Ethics?Lowenstein defines ethics as:“…the attemptto think criticallyabout what is right and what is wrong,what is good and what is bad,in human conduct.”Simply stated, “How should people act?”Lowenstein, 2008Marc Lowenstein from Academic Advising: Comprehensive Handbook, 2008
5 Definition of Ethical Terms Legal—rules based “rightness”right and wrong determined by othersMoral—right vs. wronghow we live our livesValues—honor and morality;“rightness” (varies with individuals)Ethics—right vs. rightthe theory about right and wrongRight vs right – basic principles of right action
6 Legal Foundations of Advising The law of post secondary education is not staticCourt applications changePolicies and procedure of institutions changeAdvisors’ statements should accurately represent the institution’s goals, services, facilities, programs, and policies.Academic advisors are “agents” of their employing institutions. Statements made by advisors may be construed as promises that obligate the institution to act, or not act, in a certain way. If a perceived promise is broken, and a student claims to be harmed, the institution may be liable to fulfill the terms of the promise.Gordon, Habley, Grites, and Associates, 2008Academic advisors are “agents” of their employing institutions. Statements made by advisors may be construed as promises that obligate the institution to act, or not act, in a certain way. If a perceived promise is broken, and a student claims to be harmed, the institution may be liable to fulfill the terms of the promise. Therefore, advisors’ statements should accurately represent the institution’s goals, services, facilities, programs, and policies.
7 A Few Definitions to Begin Agency Law – principal-agent relationships; advisors are agents of their institutionsFiduciary Law – focuses on relationship to studentsThe person who is the fiduciary (advisor) owes duties of faith, trust, confidence, and candor to another (student)Fourteenth Amendment (for another workshop!)Liberty and Property InterestsDue ProcessGovernmental ImmunityThe law of Torts and ContractsLaw of AgencyAdvisors are agents of employing institution…already on previous slideLaw of Fiduciary RelationshipsAgency law focuses on advisor’s relationship to the institution but fiduciary law focuses on the advisor’s relationship to students it includes duties that NACADA values expect advisors to reflect in their daily interactions
8 The Family Educational Rights and Privacy Act (FERPA, 1974) FERPA applies to any institution that receives federalfunds in any form—that is, to virtually every collegeand university in the nation.
9 Parties Protected under FERPA FERPA extends its various rights to students who have attained 18 years of age and to students in attendance at institutions of postsecondary education.Once a student turns 18 or is attending a college or university, FERPA prevents disclosure of “education records” to the student’s parents unless an exception to the consent requirement applies.Under age of 21, institution may inform parents about student’s use of or possession of alcohol or controlled substancesPermits disclosure to parents without student consent if student is dependent for tax purposes.
10 FERPA regulates access to “education records.” An “education record” broadly includes those records, files, documents, and other materials which contain information directly related to a student; and are maintained by an educational institution or by a person acting for such institution.class schedulesRostersTranscriptsacademic progress reportsgrade reportscollege placement test scores,photographsadvising notesdisciplinary recordsElectronic records that meet the above definition may also be considered “education records.”
11 On the Student Side… Limitations on Students’ Right to Inspect Records The following records are not open to inspection by students:Financial records of the parentsof the studentConfidential letters ofrecommendation prior toJanuary 1, 1975Confidential recommendations if the student has signed a waiver of right to access
12 Exceptions to Student Records FERPA applies to all records maintained by the institution that directly relate to a student, not just the “student file,” with a few exceptions, which are:An administrator’s or faculty member’s own notes that are used only by that individual and are not shared with anyone else.
13 SO WHAT? Importance to Advisors… Very important to practitioners -Always maximize good and minimize harmAdvisors ask,“What is the right thing and how do I know it?”Lowenstein, 2008Start with case in Acad Advising today p. 39 and ask with is right and which is wrong and why…remember to tell answer at end (told in book p. 45)Ask to discuss in small groups which is the correct thing to do?Ethics involves difficult decisions:Is it wrong to not tell a student information that the student might use to make a decision that would not be best for him? In this case you can avoid harm but you withheld info so is wrong. because it is dishonest.It is not as clear a decision of what is wrong when compared to advisor who does not look up student record and misguides a student leading to delayed graduation.
14 Consider This!1. An advisor fails to tell a student that s/he is missing a course and delays student’s graduation. **** 2. An advisor fails to tell student about an option because s/he knows it would not be in the best interest of the student. For example, an advisor fails to provide information about possibly waiving a math requirement that a student finds excessive because the advisor feels the math might be helpful in the future.Adapted from Adv Handbook p. 39Let discuss in small groups
15 5 Ethical Ideals (Fundamental Statements) BeneficenceNon-MaleficenceJusticeRespect for PersonsFidelity(First 2 depend on consequences and last 3 do not.)Beneficence – EXAMPLE –Forget to give info about registration or something that will make the task easier…so call students orNon-maleficence – eg. Studetns not going to pass class – or succeed in major – give alternatives eg. Wants business and tellno math requirement
16 Both of these ideals are based upon their consequences 5 Ethical IdealsBeneficence—always bring about as much well-being as you can among all of the people who will be affected by your actions, both directly and indirectly and in both the short and long term.Non-Maleficence—always avoid or minimize the harm caused by your actions to all of the people who will be affected by them, both directly and indirectly and in both the short and long term.Both of these ideals are based upon their consequencesThe previous slides discussed ethical principles for advisors. How do these fit into the general ethical principles?
17 Ethical Ideals (cont.)Justice—treat all individuals fairly or equitable, granting no one any special rights or privileges that are not open to all. “Equitably” does not have to mean “the same;” it just means that differences must not create inequalities and should have a defensible basisTell about Carol, who registered students bc relative was registrar and could call him up or or dept to get it done.
18 Ethical Ideals (cont.)Respect for Persons—treat individuals as ends in themselves, never solely as means to your own end. Treat them as rational, autonomous agents, not as things that can be manipulated.Always tell the truthRespect privacy (confidentiality)Support individual autonomyIs there ever a time when you might consider not telling the truth?EG advising brother of someone you advised before and say doesn’t need to come in bc just taking classes – encourage to come in – each individual is different
19 Ethical Ideals (cont.)Fidelity—live up to all the commitments you have made, whether explicitly or implicitly. An explicit commitment is a stated promise, like a wedding vow, but what is an implicit commitment? It is a commitment that is built into a role one has taken on even if one did not realize it.Ask for ideas of implicit commitments…to tell truth, to give accurate adviceIf something is right, then it is to be considered right in allsituations, irrespective of the consequences.
20 What are some implicit commitments related to academic advising? Time to Discuss
21 Specific to Academic Advising Ethical PrinciplesSpecific to Academic AdvisingWhat principles guide your work?Seek to enhance the student’s learning whenever possibleTreat students equitablyEnhance student’s ability to make autonomous decisionsAdvocate for the studentTell the truth (advisees and others)Respect the confidentiality of communication with the studentSupport the institution’s educational philosophy and policiesMaintain the credibility of the advising programAccord colleagues appropriate professional courtesy and respectLowenstein, 2008To intro remind attendees that the ideals presented previously are generic to all areas of life, but this slide applies them specifically to AA.Tell the truth (advisees and others)To your adviseesTo all othersExample for #9 as this is more than just good manners but includes not passing on neg info about staff or faculty such as the following example adapted from Lowenstein:A student has neg feelings about fac or admin and shares with you….you may have had similar situations but you should not share your thoughts with student. What if however, you believe that not telling student truth about an admin or fac is against Prin 5 (telling the truth) or Prin 1 if you fail to council and it causes less than optimal educational exp.The lesser of evils is to steer student to other admin or prof and tell reasons that would be positive exp w/o any neg comments about other
22 According to The CAS (Council for the Advancement of Standards) guidelines for academic advising programs require thatadvisors:Ensure privacy and confidentialityImpart accurate information while complying with departmental and institutional policies and rulesAdhere to highest principle of ethical behaviorConsult standards of relevant professional organizationsUphold policy, procedures & values of dept. & institutionHandle funds responsiblyContinued…Ask, where is overlap?With general ideals?
23 (Cont.) Abide by Human Subjects Research Policy Avoid personal conflict of interestEnsure fair and impartial treatment of all personsPerform within limits of training and refer when necessaryHold all staff members accountablePractice ethical behavior in use of technology
24 Be knowledgeable about and responsive to laws and regulations that relate to advising Inform users or programs and services of legal obligations, limitations, institutional policies, and laws related to advisingBe reasonably informed to limit liabilityInstitution should provide access to legal adviceInstitution must inform about changes with respect to legal obligation or potential liability
25 According to NACADA Core Values NACADA Core Values challenge advisors to:Treat students and colleagues with respectHonor the concept of academic freedomLearn about and understand the institutional mission, culture, and expectations and interpret the institution’s values, mission, and goals to the communityObtain education and trainingBe knowledgeable and sensitive to national, regional, local and institutional policies and procedures related to harassment, technology, personal relationships with students, privacy of student information and equal opportunitiesSo, how does this all fit into the general ethical principles?
26 NACADA Core Values (Cont’d) Be knowledgeable and sensitive to national, regional, local and institutional policies and procedures related to harassment, technology, personal relationships with students, privacy of student information and equal opportunitiesRespect student confidentiality rights regarding personal information and practice an understanding of institutional laws and policies such as FERPA.Seek access and use student information only when relevant to the advising process.Document advising adequately
27 When in doubt, check it out! Listen to that inner voice! Ethical PitfallsInconsistencyNot treating students equitablyDishonesty/Not giving complete information to the studentMaking an inaccurate or ill-informed assumptionTriangulation (or unwanted advocacy)Inappropriate role with student (power differential, sexual, etc.)Poor professional respect for colleagues or institutionWhen in doubt, check it out! Listen to that inner voice!unwarranted advocacy)Inappropriate role with student (power differential, sexual, etc.)InconsistencyPoor professional respect for colleagues or institutionNACADA video show advisor rushing and telling student to take wrong math class, then must own up to it and tell supervisor and help student to change class
28 Dilemmas When ethical ideals conflict, ethical dilemmas arise. Truth vs. LoyaltyIndividual vs. CommunityShort term vs. Long termJustice vs. MercyThis is when cannot uphold all principles…they sometime conflict with each other
29 Ethical Dilemmas in Advising Boundaries and definition of rolesCompetency of self or colleaguesDuty to warnReferralsConfidentialityCampus conflicts (values and actions of staff vs. the institution’s values and policies)Personal values vs. appropriate professional response and/or values and expectations of studentsWhat have been dilemmas on your campus?These are types of ethical dilemmas you might find in advisingReread p. 40 about ethical dilemmasCan you give me some examples of ethical dilemmas you or others on your campus have faced?Examples:Over heard colleague giving inaccurate info about publicationAdvisor’s husband is registrar and she will call and register students for hard to get classes, but other advisors could not
30 What have been dilemmas on your campus? Time to Discuss
31 So, when faced with an ethical dilemma, how should we begin? Assess the situation and define the problem.Check the rules – are there currently some rules or procedures in place for this?What might a reasonable person think about this?Consult with colleagues and review the literature. Is your thinking rational?Be honest and immediate. If you don’t know – refer!Remediate where appropriate.Continued
32 So, when faced with an ethical dilemma, how should we begin? (cont.) Consider all possible solutions.Consider consequences of various decisions.Document all situations, not just problematic ones.Continue to review your personal ethics and their fit for your environment.Act in a timely manner.Follow-up.
33 Return to “Consider This” An advisor fails to tell a student that s/he ismissing a course and delays student’s graduation.****An advisor fails to tell student about an option becauses/he knows it would not be in the best interest of thestudent. For example, an advisor fails to provideinformation about possibly waiving a math requirementthat a student finds excessive because the advisor feels themath might be helpful in the future.
34 Training Advisors for Ethical Decision-Making Advisors should be encouraged to solve dilemmas by:Considering what is at the heart of the matterApplying relevant policies, rules, or lawsWeighing guiding principles and valuesDetermining what is ethical or unethicalFollow legal guidelinesPaula Landon, 2007, NACADA ClearinghouseGeneral Guiding Strategy can be:When confronted with conflicting principles,do the best you can to follow all of them to the extent possible.Lowenstein, 2008
35 Ethical Decision-Making For tougher decisions, advisors may find these three principles helpful:The Rules of Private Gain—if you are the only one personally gaining from the situation, is it at the expense of another? If so, you may benefit from questioning your ethics in advance of the decision.If Everyone Does it—who would be hurt? What would the world be like? These questions can help identify unethical behavior.Benefits vs. Burden—if benefits do result, do they outweigh the burden?W. Hojnacki, 2004Three Rules of Management
36 Kidder’s Resolution Principles Ends-Based ThinkingThe greatest good for the greatest numberRule-Based ThinkingFollow only the principles you want othersto followCare-Based ThinkingDo to others what we want others to do to usKidder, 1995NOT ANSWERS But 3 ways to approach answers…How Good People Make Tough Choices Rushworth Kidder Fireside, New York (1995)Institute of Global Ethics, founded by Rushworth Kidder). The basic premise is that tough choices revolve not around questions of right vs. wrong (which fall within the realm of morality and are generally pretty clear cut), but rather tough choices revolve around questions of right vs. right (in which two deeply held values are pitted against each other and apparently cannot both be satisfied).Based on study of thousands of real ethical dilemmas, Kidder presents four ethical paradigm pairs:Truth vs. loyaltyIndividual vs. communityShort-term vs. long-termJustice vs. mercyFor a given ethical dilemma, there is usually a dominant pair. Frequently, more than one must be considered, and sometimes all four. But, as Kidder points out, "merely to analyze a dilemma - even to fit it into the above paradigms - is not to resolve it. Resolution requires us to choose which side is the nearest right for the circumstances. And that requires some principles for decision-making."He outlines three such principles:Ends-based - Do whatever produces the greatest good for the greatest number.Rule-based - Follow only the principle that you want everyone else to follow.Care-based - Do unto others what you would like them to do to you.Note that these decision-making principles do not give the answer; they merely provide three quite different frameworks to approach an answer for the particular ethical dilemma being faced, according to our particular set of core beliefs.Kidder makes a fine point in drawing the analogy between ethical fitness and physical fitness. One becomes fit in either only through exercise - both are active concerns. (see next page)
37 IN ALL THE PLACES YOU CAN, TO ALL THE PEOPLE YOU CAN, John S. WesleyDO ALL THE GOOD YOU CAN,BY ALL THE MEANS YOU CAN,IN ALL THE WAYS YOU CAN,IN ALL THE PLACES YOU CAN,AT ALL THE TIMES YOU CAN,TO ALL THE PEOPLE YOU CAN,AS LONG AS EVER YOU CAN.***
38 Thank You Time for Questions Return to scenario from earlier slide and ask which was best thing to do…tell student all info or withhold so does not make poor decision?Answer: Tell all endings and let student decide