Unexpected Affirmative Action News: The U.S. Supreme Court Affirms that Universities and Colleges May Continue to Use Race as a Factor in Admissions

On June 23, 2016, in Fisher v. University of Texas et al., (“Fisher II”), the United States Supreme Court voted 4-3 to uphold the limited use of race in college and university admissions.  The result was somewhat surprising given that Justice Anthony Kennedy, writing for the majority, had never before voted to uphold a race-based affirmative action program.  (The Supreme Court had issued an earlier opinion on a different aspect of this case, “Fisher I.”)

In so doing, the Fisher II Court finally put to rest a race discrimination lawsuit that had been pending for more than eight years.  During that time, eight undergraduate classes matriculated at the University of Texas-Austin (“UT-Austin”), while the plaintiff, Abigail Fisher (“Fisher”), grew from an eighteen-year old white high school applicant to a twenty-six year-old who graduated from Lousiana State University and now works as a financial analyst in Austin, Texas.

Background

At the time Fisher applied to join the entering class of fall 2008, UT-Austin had a dual-track admissions policy for Texas residents: (i) a Top Ten Percent Plan (“Plan”) which provided automatic acceptance to those in the top ten percent of their graduating class, equal to 81 percent of the seats available for Texas residents for fall 2008; and (ii) a holistic review program that went beyond class rank to individually evaluate each applicant based on her or his achievements and experiences for the remaining 19 percent of seats available for Texas residents that year. As Fisher did not graduate in the top ten percent of her class, UT-Austin considered and then denied Fisher admission under its holistic review program.

The Supreme Court’s Decision

Fisher subsequently filed suit in federal court, arguing that UT-Austin’s admissions policies practices violated and had discriminated against her on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Fisher asserted that she had not been admitted because of her race.

In August 2009, the District Court granted UT-Austin’s motion for summary judgment. This was subsequently followed by two separate reviews by the Fifth Circuit Court of Appeals affirming summary judgment, in addition to two trips to the U.S. Supreme Court.

In its decision, the Supreme Court first discussed the “strict scrutiny” standard of review that it applied: a university must make a showing that the affirmative action plan at issue is narrowly tailored to this criterion: the benefit of student body diversity that “encompasses a … broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”

Applying this standard, Justice Kennedy, writing for the majority, found that the UT Austin “articulated concrete and precise goals” for its affirmative action program that “mirror[ed]” the compelling interest of obtaining “the educational benefits that flow from student body diversity,” and that UT Austin was owed “considerable deference…in defining [its] intangible characteristics, like student body diversity, that are central to its identity and educational mission.”  At the same time, the Court considered and rejected various race-neutral alternatives advanced by Fisher, including: (i) intensifying outreach efforts to Hispanic and African-American applicants; (ii) changing the weight given to socioeconomic and academic factors to increase diversity; and (iii) uncapping the Plan and admitting all students through a percentage plan.  In doing so, the Court noted that UT-Austin had tried all three alternatives and found them seriously deficient in achieving a diverse student body.

The Implications of Fisher II: Next Steps for Affirmative Action

For all of its significance, the Fisher II ruling is rather narrow. Fisher II analyzed the use of race in a limited number of admissions decisions under the holistic review program that constituted a distinct minority of the overall number of admissions decisions made by UT-Austin, where most students were admitted under the Plan.  Moreover, as Justice Kennedy noted, UT Austin (and all other colleges engaging in holistic review that includes race as a factor) has a “continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances,” and must engage in “periodic reassessment of the constitutionality, and efficacy, of its admissions program.”

Fisher II’s full impact on public and private universities may not been known for some time.  At present, eight states already ban the consideration of race in higher education admissions decisions at public institutions, and Fisher II will not have any legal impact on those campuses.  In other states, Fisher II may lead public universities to discuss and perhaps even reconfigure their admissions policies should those policies consider race as part of a holistic review.

Moreover, while Fisher II may represent a strong statement that it is possible for public universities to create narrowly tailored affirmative action programs, that public discussion is likely not completely over.  Two other, similar lawsuits are pending in federal court, one involving Harvard College, a private college, and the University of North Carolina-Chapel Hill, a public university.  Both cases were stayed in 2015 pending the outcome in Fisher II and will undoubtedly become more active over the coming months.  Accordingly, colleges and universities that may consider race as one element of a holistic admissions process should stay tuned to these new cases to see what develops.

Derek Ishikawa

Supreme Court Strikes Down Affirmative Action In Public Universities Again

On April 22, 2014, in Schuette v. Coalition to Defend Affirmative Action et al. (No. 12–682), the Supreme Court upheld a Michigan law that bans public colleges and universities, community colleges and school districts from offering preferential treatment to any individual based on their race, sex, color, ethnicity, or national origin in the context of public employment, public education or public contracting. A narrowly divided Sixth Circuit previously ruled that the law violated the equal protection clause by denying a fair political process to minorities. The Court, divided 6 to 2, with Justices Sotomayor and Ginsberg dissenting and Justice Kagan recusing herself, held that Michigan’s Proposal 2, subsequently enacted as Article I, §26, of the Michigan Constitution, did not violate the equal protection clause because it does not run the risk of causing specific injuries on account of race, as did laws struck down in Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982), holdings that the Sixth Circuit relied upon in making its decision.    The majority declined to comment on the effects of race-conscious policies, noting that the issue before it was not the constitutionality, or the merits, of race-conscious admissions policies in higher education but rather whether, and in what manner, state voters may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions. Continue reading

NLRB Judge Finds That College Football Players Are Employees Of Their University

Today, an administrative judge at the National Labor Relations Board (NLRB) found that student athletes on Northwestern University’s football team who receive a scholarship are employees of the university and therefore eligible to form a union.  The decision, while not the decision of the full NLRB, is a major departure from NLRB precedent and one very fraught with consequences for universities and other employers in educational fields. Continue reading

Ninth Circuit Finds That The Garcetti “Official Duties” Rule Does Not Apply To Public University Employee Academic Speech

 The Ninth Circuit, in Demers v. Austin, 729 F.3d 1011 (9th Cir. 2013), has boldly gone — where other federal circuit courts have heretofore been reluctant to venture — in declaring that applying Garcetti to academic speech would conflict with the First Amendment.  This unequivocal decision paves the way to potential Supreme Court review of the question expressly left open in the landmark Garcetti v. Ceballos, 547 U.S. 410 (2006) decision:  whether speech on academic matters by a public university professor is protected against employer discipline by the First Amendment.

Garcetti, the pivotal free speech case involving a deputy district attorney and not an academic, held that when public employees make statements pursuant to their “official duties,” the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.  The Supreme Court reversed the Ninth Circuit in so holding.  While Garcetti transformed free speech analysis for public employees in general, the court expressly left open the potential for an exception to the “official duties” rule:  “speech related to scholarship or teaching.”  This potential exception is now the rule in the Ninth Circuit.

The Demers Case

David Demers, a now former tenured professor at Washington State University’s Edward R. Murrow College of Communication, claimed that over a three-year period, he went from being a popular teacher and scholar with high evaluations to being a target for termination.  According to Demers, this was because he distributed a pamphlet called “The 7-Step Plan” and a draft from an in-progress book he was writing entitled, “The Ivory Tower of Babel.”  During the time he distributed the 7-Step Plan and draft portions of his in-progress book, Demers served on the Morrow School’s Structure Committee, which was actively debating the faculty structure at the school following its separation from the University’s College of Liberal Arts.  The 7-Step Plan advocated separating the Morrow School’s two faculties and giving a more prominent role to the faculty with a professional, rather than an academic, focus.

In addition to his employment with the University, Demers owned and operated an independent publishing company named Marquette Books.  As the publisher of Marquette Books, he sent the 7-Step Plan to various University administrators; the pamphlet also stated that it was prepared by Marquette Books L.L.C.  Additionally, Demers offered on behalf of Marquette Books to make substantial monetary contributions to the University’s unrestricted funds if the 7-Step Plan was adopted.  Demers also sent the 7-Step Plan to members of the print and broadcast media in Washington, University administrators, and some colleagues, but did not send the pamphlet to the Structure Committee.  With respect to the in-progress book, Demers described it as containing information that was critical of the academy, including some events at the University.  He attached draft copies of chapters of his book to his application for sabbatical, and described the book in his self-prepared Faculty Annual Reports.

Demers claimed that certain University administrators violated his First Amendment rights by retaliating against him for circulating the 7-Step Plan pamphlet and drafts of his book.  The alleged retaliation included:  knowingly using incorrect information to lower his performance review scores, spying on his classes, preventing Demers from serving on certain committees, preventing Demers from teaching basic Communications courses, instigating two internal audits, sending him an official disciplinary warning, and excluding him from heading the Communications sequence at the Morrow School.  Defendant administrators responded that the evaluations and investigations were warranted based on Demers’ performance.  They also asserted that distribution of the pamphlet was not protected speech because it was written and circulated pursuant to Demers’ official duties and, in any event, it did not address a matter of public concern.

The Ninth Circuit found that it was impossible, as a practical matter, to separate Demers’ position as a member of the faculty and as a member of the Structure Committee, from his preparation and distribution of the 7-Step Plan pamphlet.  Therefore, the court concluded that Demers was acting sufficiently within his capacity as a professor in distributing the pamphlet such that he was acting “pursuant to his official duties” within the meaning of Garcetti.  Notwithstanding this fact, the Ninth Circuit – noting the Supreme Court’s long history of upholding the expansive freedoms of speech and thought associated with the university environment – concluded that Garcetti does not apply to teaching and academic writing that is performed pursuant to the official duties of the professor.  Rather, the Ninth Circuit held that the extent to which such writing and teaching is speech protected by the First Amendment is instead governed by the balancing test set forth in Pickering v. Bd. Of Ed. Of Twp. High Sch. Dist., 391 U.S. 563 (1968).

Under Pickering – a case involving a public high school teacher who wrote a letter to a local newspaper complaining about budgetary decisions made by the school district – the interests of the public employee as a citizen in speaking on matters of public concern are balanced against the interests of the government employer in promoting the efficiency of the public services it performs through its employees.  The Ninth Circuit cautioned in Demers that Pickering balancing in cases involving academic speech is likely to be particularly subtle and “difficult.”  In explaining the difficulty attendant to assessing the nature and strength of the public interest in academic speech, the Ninth Circuit explained that judges should hesitate before concluding that academic disagreements about what may appear to be esoteric topics are mere squabbles over jobs, turf, or ego (i.e., not speech on matters of public concern).  Likewise, the Ninth Circuit noted that the nature and strength of the interest of an employing academic institution will also be difficult to assess, and cautioned judges to also hesitate before concluding that they know better than the institution itself the nature and strength of its legitimate interests.  In this regard, by way of example, the court observed that while ordinarily content-based judgment is anathema to the First Amendment, the evaluation of a professor’s writing for purposes of tenure or promotion involves judgment by the employing university about the quality of what has been written that is both necessary and appropriate.

The Ninth Circuit stated, however, that not all speech by a teacher or professor addresses a matter of public concern, and that the First Amendment does not protect speech that is essentially a private grievance.  Significantly, though, the Ninth Circuit took a broad view of what could qualify as protected academic speech.  In this regard, the court noted that protected academic writing is not confined to scholarship; academics in the course of their academic duties also write memoranda, reports and other documents addressing topics such as budgets, curriculum, departmental structure and faculty hiring.  Such writing, depending on its scope and character, may address a matter of public concern under Pickering.

In Demers’ case, the Ninth Circuit concluded that his 7-Step Plan addressed a matter of public concern under Pickering because it contained serious suggestions about the future course of an important department of the University, at a time which the Morrow School itself was debating some of the recommendations.  Because the District Court had reached a contrary conclusion, the case was remanded to address the Pickering balancing questions, as appropriate.

While the broad language used by the Ninth Circuit in the Demers case could be construed as extending the reach of its Garcetti exception for academic speech beyond professors at public post-secondary institutions, and into the primary and secondary school context, it is doubtful that such a broad application is intended.  This is because the Ninth Circuit has already stated its belief that the Garcetti carve-out for academic freedom applies only to teachers at public colleges and universities, and not to public primary and secondary school teachers.  (Johnson v. Poway Unified School Dist., 658 F.3d 954, n. 12 (9th Cir. 2011).)

            A Circuit Split Beckons Supreme Court Review

The Ninth Circuit is the first federal circuit court to hold squarely that Garcetti does not apply to academic speech at the college and university level.  Other federal circuit courts that have had the chance to weigh in on the issue have been less boldly definitive.

With Demers, the Ninth Circuit takes its place alongside the Fourth Circuit, which previously declined to apply Garcetti in Adams v. Trustees of Univ. of N. Carolina-Wilmington, 640 F.3d 550 (4th Cir. 2011).  Adams involved claims by an associate professor that the university did not promote him to full professor following his religious conversion because of his outspoken Christian and conservative beliefs.  Adams became increasingly vocal following his conversion about various political and social issues within and outside of the university, became a regular columnist for Townhall.com, and appeared on radio and television broadcasts as a commentator.  Adams’ columns addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion and morality.  He also continued to receive strong teaching reviews from students and faculty.  The Fourth Circuit – concluding that Adams’ speech reflected the appropriate aspect of scholarship and teaching – declined to apply Garcetti based on the facts of Adams’ case.  Although the Fourth Circuit acknowledged the Supreme Court’s reservation of whether the Garcetti “official duties” rule applied when the speech in question was academic scholarship and teaching, the court noted that there may be instances when a public university faculty member’s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching, and that Garcetti may apply to the specific instance of a faculty member’s speech in carrying out those duties.

On the other side of the fence, the Third, Sixth and Seventh Circuits have declined to apply an exception to Garcetti for speech in the public college and university context.  Two years after Garcetti, the Seventh Circuit decided Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008).  Renken was an associate professor at the University of Wisconsin-Milwaukee, who had obtained a grant from the National Science Foundation to establish a thermal engineering laboratory that required the university to share the cost.  Although the university agreed to share the cost, Renken disagreed with the university’s proposed use of the grant money and believed that the proposed use would violate federal law.  Renken therefore filed several complaints with various university committees, and ultimately filed suit claiming that he had been retaliated against (the university allegedly refused to pay his student assistants and proposed a reduction in his compensation) for his speech, in violation of the First Amendment.  The Seventh Circuit concluded that administering the grant fell within Renken’s teaching and service duties that he was employed to perform.  Applying Garcetti without any discussion of the Supreme Court’s mention of a possible academic exception, the Seventh Circuit found that Renken’s speech was not protected by the First Amendment because it was made pursuant to his official duties as a faculty employee, and not as a private citizen.

The following year, the Third Circuit in Gorum v. Sessoms, 561 F.3d 179 (3rd Cir. 2009), applied Garcetti’s “official duties” rule to determine that a former Delaware State University professor’s advising a student athlete in a disciplinary appeal, and involvement in rescinding an invitation to the University President to speak at a fraternity event, was not protected speech under the First Amendment.  The Third Circuit, unlike the Seventh Circuit, directly addressed the Supreme Court’s statement in Garcetti regarding “speech related to scholarship or teaching.”  The court voiced its accord with the Supreme Court that there is some argument that “expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by … customary employee-speech jurisprudence.”  However, the court noted that the “full implications” of the Supreme Court’s statements were “not clear,” and that as a result, federal circuit courts “differed over whether (and, if so, when) to apply Garcetti’s official duty test to instructors.”  Ultimately, the Third Circuit dodged the issue by determining that applying the Garcetti official duties test to the professor in the case before it did not imperil First Amendment protection of academic freedom in public colleges and universities because Gorum’s actions “so clearly were not ‘speech related to scholarship or teaching.’”

More recently, in Savage v. Gee, 665 F.3d 732 (6th Cir. 2012), the Sixth Circuit applied Garcetti’s official duties test to find that the Head of Reference and Library Instruction at Ohio State University’s speech as a committee member commenting on book recommendations was made pursuant to his official duties, and was therefore not protected speech.  While acknowledging the Supreme Court’s dicta in Garcetti, the Sixth Circuit determined that the speech commenting on a book recommendation was not related to classroom instruction and “was only loosely, if at all, related to academic scholarship.”  The Sixth Circuit reasoned:  “Thus, even assuming Garcetti may apply differently, or not at all, in some academic settings, we find that Savage’s speech does not fall within the realm of speech that might fall outside of Garcetti’s reach.”

* * *

Only time will tell whether the Supreme Court provides clarity on whether, and if so, when, to apply Garcetti or Pickering to public college and university employee academic speech.  However, for the time being in the Ninth Circuit, there is no equivocating about the existence of an exception to the Garcetti official duties rule for academic speech at the college level.

- Jayne Benz Chipman

Breaking News: USSC Issues Decision in Fisher vs. UT Austin

The United States Supreme Court issued its 7-1 decision in Fisher vs. University of Texas at Austin today.  Justice Kennedy delivered the opinion of the Court, Justice Ginsburg dissented, Justice Kagan recused herself.

The Court vacated the decision of the Fifth Circuit Court of Appeal which had upheld the University’s consideration of race as one of many factors when evaluating applicants for admission.  The Court found that the Fifth Circuit did not appropriately apply the required strict standard of scrutiny.   When racial classifications are used, they are constitutional only if they meet the test for strict scrutiny, which requires a showing of (1) a compelling state interest (in this case diversity as an educational goal) and (2) that the use of such racial classifications is narrowly tailored to achieve the compelling state interest.

According to the majority opinion, the Fifth Circuit accorded the University too much deference when it held that the Petitioner, Abigail Fisher, could only challenge whether the University’s decision to use race as an admissions factor “was made in good faith.”   According to the Court, the University had been given too much deference as to whether its plan was “narrowly tailored to achieve its stated goal” in achieving a more diverse student body.  As such, the Fifth Circuit must review the case again under the strict scrutiny standard without according the University such deference.

We cannot predict what the Fifth Circuit will do.  The Supreme Court has accepted another admissions case and we believe that this issue is far from over.  In concurring opinions today, Justices Thomas and Scalia signaled that they do not consider the educational benefits of diversity to be a compelling state interest that justifies the use of race in evaluating candidates for admission.

Given all of this uncertainty and the impact that diversity has on all of our workplaces, we will continue to monitor this situation and will keep you posted…

- Natasha Baker

New California Legislation Affecting Colleges And Universities In 2013 Focuses On Student Issues

The California Legislature took aim this past session to address topics near and dear to many college and university students:  social media, textbook, loans, and athletic scholarships.

Hands Off Student Social Media!  

When tech-savvy California Governor Jerry Brown signed two social media laws this past September, what did he do?  He announced it on Twitter, Facebook, Google+, LinkedIn and MySpace.  SB 1349, which passed through the Legislature without opposition (a feat in itself), prohibits public and private postsecondary educational institutions in California – as well as their employees and representatives – from requiring or requesting a student, prospective student or student group to disclose, access, or divulge personal social media user names or passwords, or any personal social media information.  According to the Governor’s Office, the legislation – similar but narrower in scope to companion bill AB 1844 applicable to California employers – was “designed to stop the growing trend of colleges and universities snooping into student social media accounts, particularly those of student athletes.”  “Social media” is defined expansively to mean “an electronic service or account, electronic content, including, but not limited to, videos, or still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”  Colleges and universities cannot discipline or threaten to discipline or penalize a student or student group for refusing to comply with a request that violates the prohibition.  However, the legislation states that it is not intended to prohibit investigation into alleged student misconduct or violations of applicable laws or regulations, or taking adverse action against a student, prospective student or student group for any lawful reason.  Only time will tell, however, exactly where this “not so bright” line is drawn.

The More Information The Better, At Least When It Comes To Student Loans And Textbooks

The Legislature continued in its attempt to address components of rising education costs for students:  student loans and textbooks.  Attempting to address the rising amount of debt assumed by students in order to attend college, SB 1289 requires public and private colleges and universities (with the exception of community colleges, which are requested to comply) to make certain disclosures to students regarding private student loans in financial aid materials and in private loan applications.  All printed and online financial aid materials issued/distributed by the institution, and also private loan applications provided or made available by the institution, must include specific statements regarding (1) the fact that federal student loans are required to provide a range of flexible payment options and repayment plans that other loans are not required to provide, and (2) that federal direct student loans are available to students regardless of income.  The legislation also requires institutions that offer private loans as part of a financial aid package to clearly distinguish between federal loans and private loans, and provide specific information regarding interest rates that can be charged by private lenders.  Institutions that provide a private lender list to students must also disclose the basis for each lenders inclusion on the list.  Opponents of the legislation asserted that it was unnecessary because the federal Truth in Lending Act and the U.S. Department of Education’s student financial aid regulations already require disclosures in this arena. 

Likewise, the rising cost of course materials and textbooks continues to be a legislative focus with the passage of SB 1539, which requires textbook publishers, and also their agents and employees, to provide price and content comparison information to faculty at both public and private higher education institutions who are prospective purchasers of the products.  The data required to be provided includes a list of the products offered for sale by the publisher germane to the prospective purchaser’s subject area of interest, the wholesale or retail price of the product, and the estimated length of time the publisher intends to keep the product on the market.  The required information also includes – for each new edition of the product – a list of the substantial content differences between the new edition and the previous edition of the textbook. The definition of textbook products was also expanded to include materials in digital or electronic format.  Additional legislation in the arena aimed at lowering the cost of instructional materials for students attending California’s public colleges and universities, was the passage of both SB 1052 and SB 1053, creating the California Open Education Resources Council and the California Open Source Digital Library.  The Council is charged with the identification of strategically selected lower division courses and making sure that open digital material of high quality is created for students in such courses.  Likewise, the Library, to be administered by CSU, will house open source materials and provide a web-based means for students, faculty and staff to find, adopt, use and modify course materials for little or no cost.   

A Student Athlete Bill of Rights, But Currently Only For Athletes At Four Of California’s Universities

California once again enacted “first-in-the nation” legislation – albeit limited – to protect student athletes who suffer career-ending injuries (SB 1525).  The Student Athlete Bill of Rights requires universities that receive more than $10 million annually from sports media revenue to give academic scholarships to students who experience a career-ending injury while playing their sport.  It also requires universities to cover insurance deductibles and pay health insurance premiums for low-income student athletes.  Currently, that is a lonely club of four PAC-12 California schools:  U.C.L.A., U.C. Berkeley, Stanford and USC (soon to potentially be joined by the non-PAC-12 U.C. San Diego).  Opponents of the bill voiced concern that the legislation failed to protect the rights of the vast majority of California’s student athletes, who do not participate in the few sports programs with a sufficiently high-profile to meet the media revenue threshold.  Will similar rights eventually be extended to college athletes with sports scholarships at colleges and universities with less high-grossing athletic profiles?  Stay tuned.

- Jayne Benz Chipman (San Francisco)

New Definition of Mandated Reporters Affects California Institutions of Higher Education

The California Child Abuse and Neglect Reporting Act, requires a mandated reporter, to report whenever he or she, in his or her professional capacity or within the scope of his or her employment, has knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Failure to report an incident is a crime punishable by imprisonment in a county jail for a period of 6 months, a fine of up to $1,000, or by both that imprisonment and fine.

Previously, the Act, which encompasses “school” employees, did not define “school,” thereby leaving an open question as to its applicability outside the K-12 context.

Effective January 1, 2013, the definition of mandated reporter under the Act was expanded to explicitly include employees and administrators of a public or private postsecondary institution, whose duties bring the administrator or employee into contact with children on a regular basis or who supervises those whose duties bring the administrator or employee into contact with children on a regular basis.  The scope of the reporting obligation is limited to suspected or actual child abuse or neglect occurring on that institution’s premises or at an official activity of, or program conducted by, the institution. 

Recommended Training

Under the Act, employers are strongly encouraged to provide their employees who are mandated reporters with training on their responsibilities under the Act.  Per the Legislature, this training should include training in child abuse and neglect identification and training in child abuse and neglect reporting.  In order to encourage compliance with the Act, we also recommend that the training include a discussion of the legal obligations and consequences for failing to report and the available legal protections for mandated reporters. 

Required Mandatory Reporter Disclosure to Employees

Whether or not employers provide their employees with training in child abuse and neglect identification and reporting, the Act requires that employers provide their employees who are mandated reporters with the information and disclosure statement required pursuant to Penal Code Section 11166.5(a).

Recommended Actions

  • California institutions of higher education should review their employees’ obligations under this Act and ensure that those who qualify as mandated reporters are apprised of their obligations in accordance with the requirements of Penal Code Section 11166.5(a). 
  • A written policy governing the duties and responsibilities of these mandated reporters is also advisable. 
  • Finally, we recommend ensuring that all employees who satisfy the definition of mandated reported receive the recommended training.  Our office currently offers this training on-site and via webcast. 

For any questions on this issue or other legal matters affecting institutions of higher education, please contact Natasha J. Baker at nbaker@hkemploymentlaw.com