General Counsel Frequently Asked Questions

The Americans with Disabilities Act is a federal law prohibiting discrimination on the basis of a person’s disability. [42 U.S.C. 12101 et seq. Code of Federal Regulations: 28 CFR parts 35 and 36] However, determining whether a person has a qualifying disability and whether it is a disability that can be accommodated can be complicated legal issues.

Student Accessibility and Support Services (SASS) will make this decision for students. Human Resources (HR) will make this decision for employees. These decisions are made in collaboration with the student or with the employee and, as necessary, with that person’s health care provider.

SASS will make this decision for students. HR will make this decision for employees. These decisions are made in collaboration with the student or with the employee and, as necessary, with that person’s health care provider.

You will not know unless your position requires you to comply with some aspect of the person’s accommodation. This will most likely be a faculty member who has a student with an accommodation. In all cases, you will be given a letter from either SASS or HR describing the person’s accommodation.

Consider the letter to be an instruction from the University describing what must be done to accommodate the person’s disability and your role in the accommodation. If you have questions about anything, contact either SASS or HR, whichever office prepared the letter.

Tell either SASS or HR, whichever office prepared the letter, about your concern. However, you do not have the option of refusing to comply with the accommodation unless SASS or HR authorizes a change in the accommodation.

Copyright Law protects the tangible expression of an idea. Title 17 of the United States Code contains the law of copyright. An idea is a “tangible expression” when it has been fixed into a tangible form, such as a book, article, poem, musical work, artwork, photography, movie, course materials, academic research, etc. In copyright law the tangible expression of an idea is called a “work.” The creator of a work is called the “author.”

The author of a work has what is referred to as a “bundle of exclusive rights” under copyright law. These are the exclusive rights to: (a) reproduce the work in any manner; (b) prepare derivative works (including arrangements and new versions of the work) that are based on the work; (c) distribute copies of the work by selling, leasing, or by any other means; (d) perform the work in public; and, (e) display the work in public. These rights are the subject of the “grant of rights” language in a writing/publishing contract and of licenses.

Yes. An author’s exclusive rights do not apply in four primary situations. In each of these situations, someone other than the author can use the work without the author’s permission, but only as described in the limitation. The limitations are: (a) Fair Use Doctrine, which allows others to use portions of the work for criticism, comment, satire, news, teaching, scholarship, and research; (b) First Sale Doctrine, which gives the purchaser of the work the right to distribute or dispose of his or her copy of the work; (c) Public Domain, which states that any work whose copyright has expired is no longer protected by Copyright Law and can be freely used by anyone; and, (d) the right of libraries and archives to reproduce the work for use within the library or archive.

No. Copyright Law protection is automatic at the time the work is created. It is not necessary to register the work with the U.S. Copyright Office in order to receive protection. Copyright registration does not give additional protection, but it does create a legal presumption that the person claimed as the author on the registration form is actually the work’s author. This can be a powerful piece of evidence, which is why works introduced into the stream of commerce are usually registered with the Copyright Office. Nevertheless, when submitting a work to a publisher for consideration, it is not necessary to first register the copyright in the work.

It is not necessary, but it is advisable. A copyright notice is any language that states the name of the author, the year the work was created, and that the author is claiming the work to be their original work. For example: “Copyright 2021 by Dana Author, all rights reserved.” The purpose of a copyright notice is to put everyone on notice who sees the work that the author is claiming their rights under Copyright Law in their work.

The person or persons who actually created the work. It is not unusual in academic and other settings for a work to have multiple authors. Any individual who makes a significant contribution to the work is an author (or co-author) and is entitled to share in the exclusive rights in the work. Co-authors are, essentially, partners and co-owners of the work. A significant contribution is determined on a case-by-case basis, but is a contribution that, if missing, would change the work in a material or significant way.

It is the written permission of the author to authorize another person to use the work as described in the license. A copyright license is a contract that must be written (it cannot be an oral agreement); that describes the work; it identifies the author (the licensor) and the person receiving the license (licensee); it describes the “grant of rights” that the author is granting, or authorizing through the license (what the licensee is being allowed to do with the work); it describes any limitations on the grant of rights; and it describes what the licensee is paying to the author in exchange for the license.

Copyright infringement is any unauthorized use of a work by anyone who is not the author. This includes using a work without first obtaining a license, as well as using a work in ways not authorized by a license. Using a work that is in the Public Domain or that is a Fair Use is not infringement. There are statutory and other penalties that can be awarded for copyright infringement.

The general rule is that for works created prior to January 1, 1978, Copyright protection lasts for the life of the author plus 70 years. For works created before 1978 the rules can vary, depending on when the work was created and whether any applicable, required renewals were completed.

There are two situations when the “work for hire” principle applies: (a) when there is a written agreement prepared stating that the author of the work is specifically hired or commissioned to create the work, and which gives 100% of all authorship and author’s rights to the person who hires the author or who commissions the work (although the parties can agree in their contract to reserve some or all rights to the actual author); and, (b) in an “employer-employer relationship” where the author is an employee of the person for whom the work is created, the employer has 100% of all authorship and author’s rights (although the employer and employee can agree in a written contract to reserve some or all rights to the employee).

The general rule is that the work for hire principle does NOT apply to course materials, research, or other academic works created by a faculty member in the course of their work as a member of the faculty of a university. The same general rule applies to works created by students. However, exceptions can occur when a faculty member or student is specifically hired to create a work for the university’s use. This situation must include a written agreement specific to the work to be created and it must make clear that the faculty member or student does not own the work. The written agreement must also describe that the faculty member is being paid for producing the work.

It is found in two policies: 3E.05 Intellectual Property Policy; and, 3E.06 Use of Copyrighted Material.

While this is a legal issue derived from the First Amendment right of free speech and from contract law, it is more likely to be thought of as the three specific freedoms, or rights, identified in the “1940 Statement of Principles on Academic Freedom and Tenure” of the American Association of University Professors (AAUP). Those rights are: (1) freedom in research and in publication of the results; (2) freedom in the classroom in discussing the subject matter of the course; and, (3) freedom to speak or write as a citizen, as a member of a learned profession, and as an officer of an educational institution.

That a faculty member will not be disciplined or otherwise suffer an adverse employment action or consequence because they engage in research, classroom discussions, or speaking, even if the subject matter is controversial or even objectionable. It is an employment issue. It does not prevent or prohibit others from disagreeing, challenging, debating, or otherwise responding to research, classroom discussions, or speaking. “Others” includes students, colleagues, other university employees, community members, and even university administrators. Faculty Academic Freedom protects the faculty member’s job, it does not protect them from criticism.

In general, no. The general rule is that a faculty member can instruct their classes however they deem appropriate, they are in charge of their own research agenda and methods, and they can express themselves freely in fulfilling all of their faculty roles and obligations. The main exception to this general rule is that an instructor must actually instruct their classes, conduct research related to their discipline, and stay focused on issues.

Yes. A faculty member must comply with institutional policies and procedures, as well as with conduct expectations described in university policies. Academic freedom is intended to be a shield to protect a faculty member’s job and how they perform their academic duties. It is not intended to be a weapon to be used to bully or engage in discrimination or harassment of others or the institution.

It applies to all faculty, without regard to tenure, academic rank, or even full-time status. Adjunct faculty, part time or temporary faculty, visiting faculty, non-tenure track faculty, and tenure-track but not yet tenured faculty are fully protected by Faculty Academic Freedom exactly the same as a tenured full professor.

No. The university is free to handle the situation as it determines is best. Exactly how a university will respond to a given situation is always based on the circumstances and facts of each individual case.

Yes, but the lawsuit will most likely be based on First Amendment and/or contract law issues. Courts do recognize that academic freedom contains certain rights, but those rights are derived from the First Amendment and from contract law. Contract law will be especially helpful to the faculty member when university policy (or a collective bargaining agreement) clearly describes that academic freedom applies to academic issues, which is most likely the case at every university.

A faculty member working at a public university is protected by the First Amendment when they speak as a private citizen on a public issue, as well as when they are engaged in private activities or practices that are personal and not related to their professional responsibilities. Academic freedom does not extend to personal and nonprofessional activities and speech. Contract law also offers protection when an adverse employment decision is taken against a faculty member in violation of university policy, regardless of whether it is an academic freedom issue.

The Family Educational Rights and Privacy Act. It is federal law with the statutory cite being: 20 U.S.C. 1232(g). The Code of Federal Regulations cite is: 34 CFR Part 99.

It deals with a student’s education records and gives a student 3 specific rights concerning their own education records:

* The right to inspect and review their education records.

* The right to request amendment of their records if they believe the records are inaccurate or misleading.

* The right to have some control over the disclosure of information in their records.

A student is an individual who is or who has been in attendance at an institution; and, about whom the institution maintains education records. An individual is not a student until they have actually been admitted to the institution as a student. A prospective student is not a student.

Records that are directly related to a student and that are maintained by an educational agency or institution or by a party acting for the agency or institution. In other words, records concerning a student maintained by the university, school or college, department, or by any other subordinate entity of a university, as well as by any party acting on behalf of the agency or institution (such as a 3rd party vendor or an internship sponsor). An education record can be maintained in any format and no particular format makes a record not an education record (i.e. handwriting, video or audio tape, computer media, film, print, microfilm and microfiche, etc.).

These are specific types of records that are NOT education records covered by FERPA:

* Sole possession records, or records in any format created and maintained by a single individual (often a teacher, but anyone), that no one else but this individual will ever see or use or have access to. Such records are an individual’s private records.

* Records created and maintained by law enforcement for a law enforcement purpose.

* Student employment records (unless employment is contingent on attendance).

* Student medical records made and maintained in the course of treatment and disclosed only to those individuals providing treatment.

* Records that only contain information about a student after they are no longer a student at that institution (alumni records are not education records).

* “Directory Information.”

Information that is not generally considered to be harmful or an invasion of privacy if disclosed and which can be disclosed without violating FERPA:

* Name, address, telephone listing, and email address.

* Date and place of birth.

* Photograph.

* Participation in officially recognized activities and sports.

* Field of study.

* Weight and height, but only of student athletes.

* Enrollment status (full or part time, undergraduate or graduate).

* Degrees, certificates, and awards received.

* Dates of attendance.

* Most recent previous school attended before attending the institution.

* Grade level (freshman, sophomore, junior, senior, or other level).

A school official with authorized possession of a student’s education record can disclose the record without the student’s knowledge or prior authorization to the following people or under the following circumstances:

* To other school officials who have a legitimate educational interest in the record.

* To other schools to which a student is enrolling or transferring.

* To specific government officials for the purpose of auditing, evaluating, or enforcing education programs.

* To appropriate parties in connection with financial aid to a student.

* To organizations conducting certain studies for or on behalf of the school.

* To accrediting organizations.

* To comply with a judicial order or a lawfully issued subpoena (but check first with the General Counsel’s Office).

* To contractors, consultants, volunteers, and other parties to whom the school has outsourced services or functions. This will be a limited set of situations (check first with the General Counsel’s Office).

No. Once a student is 18 years old they are in control of disclosure of their student records pursuant to FERPA. Any other person in that student’s life who seeks access to the student’s records must first have the student’s prior, written authorization for disclosure.

Yes, but there are specific procedures that apply. This is normally be handled by the Office of the Registrar and these requests should be referred to this office.

A written notice informing students each year of their rights under FERPA and how the university discloses education records without prior authorization.

Sharing any information in any format about a student when that information is covered by FERPA and a reasonable person is likely to be able to identify which student is the subject of the information, such as:

* In class.

* In faculty meetings.

* In staff meetings.

* In casual conversation with anyone anywhere.

* At home, at a social gathering, or in a public location such as a restaurant.

* Leaving paperwork in a location or under circumstances when anyone can see the content of the paperwork.

* When information is displayed on a device screen in a location or under circumstances when anyone can see the content displayed on the screen.

* When engaged in an otherwise FERPA compliant situation, but under circumstances when others can overhear or otherwise have access to protected information/records.

This can be done, whether you are talking to a colleague or raising an issue during a faculty meeting or during some other situation with your colleague(s). First, state that you have a situation with a student and that you are seeking advice on how to handle the situation. Do not give the student’s name or other personally identifiable information. Describe the situation as generally as possible and as succinctly as possible. Be professional. Ask for the advice you need.

Anything that would help a reasonable person without personal knowledge of the circumstances to identify the student. This includes specific information such as name or identification numbers, as well as simply too much information about the situation you are describing.

Talk to someone whose position with the university is such that they are likely to know exactly what to do and who can give you advice you can rely on with certainty. This may be your faculty mentor, a colleague who you trust and believe knows what to do, your department chair, dean, the provost, or general counsel. And have this conversation in a private, confidential manner.

Freedom of speech is one of the rights guaranteed in the First Amendment to the U.S. Constitution.

The First Amendment to the U.S. Constitution prohibits the federal, state, and local governments from interfering with individual free speech. This means the government cannot stop you from expressing yourself, it cannot censor your speech, and it cannot punish you for expressing yourself, with limited exceptions.

Yes. Individuals, private business, and other private entities are not prohibited from interfering with your free speech (as long as the form of interference does not violate the law).

To protect the expression of ideas from governmental interference.

The expression of ideas is protected, feelings are not.

No. Types of speech that are NOT protected by the First Amendment include:

* Lies and false or misleading statements.

* Actual direct threats made with the intent to cause the fear of harm or death.

* Fighting words, or speech intended to cause an immediate and violent reaction.

* Incitement to unlawful or illegal action.

Almost any opinion or belief on any subject that is expressed by an individual is protected speech.

ESU is a public employer and is considered to be part of the state government. Therefore, ESU cannot interfere with an employee’s right of free speech. While there are a few exceptions, an employee cannot be disciplined or fired just for expressing protected speech.

ESU is a public university and is considered to be part of the state government. Therefore, ESU cannot interfere with student or faculty academic freedom (which means they are free to instruct, to conduct research, to speak in the academic context, and free to learn, even when the subjects are controversial). In addition, students and faculty do not give up their right to express their opinions on non-academic matters because they are at a state university. While there are a few exceptions, faculty and students cannot be disciplined or fired/expelled just for expressing protected speech.

Yes. ESU cannot:

* Censor, prohibit, “chill,” or punish protected speech.

* Create speech codes that prohibit unacceptable words or types of speech and that allow only “acceptable” types of speech.

* Create overzealous anti-harassment policies that interfere with protected speech.

* Create “speech zones” that prohibit or permit only certain speech.

* Prohibit “microaggressions” or require “trigger warnings.”

* Prohibit speakers who might be controversial.

* Punish students, faculty, or staff for expressing their opinions (with limited exceptions).

Behavior that meets the legal definition of “unlawful discrimination” is NOT protected speech. Unlawful discrimination includes decisions, actions, or conduct that adversely affects another person’s employment or academic opportunities and that are based on one or more protected classifications of the individual, as described by law or university policy.

Harassment is a type of unlawful discrimination and is NOT protected speech. However, harassment is more than rude or offensive behavior and any complained of behavior must meet all of the following elements in order to meet the legal definition of harassment:

* Conduct toward a person based on one of more of the protected classifications, and,

* That creates an intimidating, hostile, or offensive academic, work, or housing environment for the individual, and,

* That is severe or pervasive, and,

* That unreasonably interferes with their education or work, and,

* That is evaluated using a reasonable person standard.

Yes, but ESU can and does have policies describing when and how such events can occur in order to preserve normal university operations, prevent damage to property, prevent interference with foot or vehicle traffic, protect health and safety, control excessive noise, control litter and trash, and to make sure university property is used only for university purposes, except as permitted by applicable policies or laws.

HIPAA, or the Health Insurance Portability and Accountability Act, is a federal law passed in 1996 aimed at improving portability and continuity of health insurance coverage in the group and individual markets, combating waste, fraud, and abuse in health insurance and health care delivery, promoting the use of medical savings accounts, improving access to long-term care services and coverages, to simplify the administration of health insurance, and for other purposes. Along with the other objectives of the act, HIPAA gave the Secretary of Health and Human Services the power to implement regulations setting the standards for privacy of individually identifiable information.

The Standards for Privacy of Individually Identifiable Health Information are the regulations that address the use and disclosure of protected health information (PHI) by covered entities, along with standards for individuals' privacy rights to understand and control how their health information is utilized. The rule is designed to assure that individuals' health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public's health and well being. The rule serves as a middle ground which allows for information to be used for important purposes while protecting the individual privacy of individuals seeking medical care.

Health Plans, Health Care Clearinghouses, Qualifying Healthcare Providers, Business Associates, Contractors who provide services to Business Associates, and Vendors of Personal Health Records are all covered entities under HIPAA.

All individually identifiable health information that is possessed or transmitted by a covered entity or a business associate, regardless of whether it is in paper or electronic form, is protected by HIPAA. This information includes demographic data related to an individual's past, present or future physical or mental health or condition, the provision of health care to an individual, the past, present, or future payment for the provision of health care to an individual, and that identifies an individual or for which there is a reasonable basis to believe it can be used to identify the individual. Examples of individually identifiable health information includes many common identifiers such as name, address, birth date, Social Security Number.

A covered entity may not use or disclose protected health information unless the HIPAA Privacy Rule allows or requires disclosure or the individual who’s information is being disclosed authorizes the disclosure of the information in writing.

A covered entity may be subject to civil penalties for violations of the HIPAA Privacy Rule. A person who knowingly violates the Privacy Rule by obtaining or disclosing individually identifiable health information may face a criminal penalty of up to $250,000 and up to 10 years imprisonment, depending on the nature and circumstances of the violation.

The Kansas Open Meetings Act [K.S.A. 75-4317 et seq.] is state law guaranteeing anyone the right to attend and observe a meeting of a public agency as they discuss issues and/or make decisions.

Yes. Emporia State University is a public agency of the State of Kansas. KOMA applies to ESU, as well as to the subordinate entities of ESU. The ESU Memorial Union and the ESU Foundation are not public agencies and are not subject to KOMA.

Officially recognized department, school, college, and university committees and task forces, as well as, Associated Student Government, Faculty Senate, Unclassified Commission, and University Support Staff Commission (shared governance entities).

Yes. Staff meetings of a public agency are not covered by KOMA. A staff meeting is a meeting of ESU personnel who are meeting to discuss one or more issues in order to share information with each other, but who do not have the collective authority to bind ESU to any decision or action during the meeting. A staff meeting may be a regularly scheduled meeting or it may be held as needed.

An open meeting must be conducted in such a way that members of the public may observe or attend the meeting. It also means that notice of the time and place of the meeting will be provided to anyone who requests notice. If the meeting is virtual, the notice must include instructions on how to observe the meeting through specific technology.

No. An open meeting cannot begin earlier than its official beginning time as described in the meeting agenda or schedule. It can begin later, but every effort should be made to begin on time.

There is no requirement to give notice to anyone unless they request notice of a meeting within a reasonable time before the meeting. However, a person can request to be notified of all meetings that will be held during a specific time period from the date of the request (up to one fiscal year of the agency – ESU’s fiscal year is July 1 to June 30). A reasonable time before the meeting would be a time period before the meeting is scheduled to begin during which the request can be received and a response given. This is not a set time period and is dependent on the circumstances of the meeting and people involved. A request to be notified of “all meetings” includes both regular and special meetings.

It is only necessary to make a request to the appropriate entity conducting the meeting. It is not necessary to make this request in writing, but this is recommended. Requests to receive notice are typically made by email or other correspondence through the agency’s website.

No. The decision whether to have an agenda or to take minutes of a meeting is entirely up to the agency conducting the meeting.

No. However, there is nothing that would prohibit the agency from handing out copies of the meeting agenda or of minutes or of any public records distributed at the meeting. Technically, though, all such documents are records and would have to be requested through the Kansas Open Records Act.

KOMA does not require public agencies to permit anyone to speak or participate in the meeting except members of the group that is meeting. The agency may permit the public to participate, but there is no requirement under KOMA to do so.

Yes, but KOMA allows the public agency to set rules describing how recordings may be made. Such rules must be intended to prevent disruption of the meeting, safety hazards, or other legitimate concerns.

No. KOMA identifies several topics that are not part of a public meeting and are instead to be discussed in executive session. The most common topics to be discussed in executive session include: (1) personnel matters; (2) consultation with the agency’s attorney that are held as part of the attorney-client relationship; (3) employer-employee negotiations; (4) discussion of data relating to the financial affairs or trade secrets of corporations, partnerships, trusts, and individual proprietorships; (5) discussion of matters relating to action affecting a student; (6) Preliminary discussion of acquisition of real property; and, (7) discussion of matters relating to security measures that protect specific systems, facilities or equipment including persons and private property if related to the agency.

This is a part of an otherwise public meeting that is held in private. Only members of the agency are permitted to be present during the executive session portion of the meeting.

The meeting must be convened and a motion must be made at some point during the meeting to go into executive session. This motion must describe the subject to be discussed (without revealing confidential information), the legal justification for executive session, and the time and place when the meeting will resume as a public meeting. Once the motion passes, everyone but members of the agency must leave and the subject of the executive session will then be discussed. When the time stated in the motion to resume the public part of the meeting arrives, executive session must end.

No. Decisions must all be made during the open part of the meeting. Members of the agency can reach a consensus during executive session, but their actual vote or other method for making a decision binding on the agency must be made in public.

Yes, as long as all discussions are of the kind permitted to be held in executive session. However, the meeting must first be convened, the motion made and passed to enter executive session, and then adjournment of the meeting would occur only after executive session ends and the public part of the meeting resumes. And, no decisions could be made during executive session, but it is not necessary that an executive session result in decisions to be made at the same meeting.

There are three options: (1) File a lawsuit in district court against the public agency; (2) File a complaint with the Lyon County Attorney; or, (3) File a complaint with the Office of the Kansas Attorney General. Complaints filed with the Kansas Attorney General must be filed on the form provided by that office online at: www.ag.ks.gov. The matter will be handled by the court or the Lyon County Attorney or by the Attorney General’s office through their regular procedures. The outcome will be either confirmation that KOMA was not violated, or, that KOMA was violated. If the agency knowingly or recklessly violated KOMA, the agency and/or members of the agency could be fined and ordered to pay actual costs, including attorney fees, of the person who made the request. In addition, any decision made in violation of KOMA can be overturned.

The Kansas Open Records Act [K.S.A. 45-215 through 45-223] is state law stating that public records shall be open for inspection by any person as described in the Act.

Records made, maintained, kept by or possessed by a public agency, or any officer or employer of a public agency pursuant to the officer’s or employee’s official duties, regardless of location, which are related to the functions, activities, programs or operations of any public agency. Records may be in any form, including paper, electronic storage, and emails.

Yes. Emporia State University is a public agency of the State of Kansas. KORA applies to the records of ESU, as well as to the records of subordinate entities of ESU. The ESU Memorial Union and the ESU Foundation are not public agencies and are not subject to KORA.

Officially recognized department, school, college, and university committees and task forces, as well as, Associated Student Government, Faculty Senate, Unclassified Commission, and University Support Staff Commission (shared governance entities).

Records requests are made in writing to the Office of the General Counsel. Anyone can request a record. The request must identify the record being sought and include the name and contact information of the person making the request. The typical records request is sent by email. A records request sent to someone on the ESU campus other than the General Counsel should be forwarded to the Office of the General Counsel for processing.

A response to the records request will be sent within three business days of the date of the request that must acknowledge the request, whether the records exist and are subject to KORA, and then give an estimate of how much time will be necessary to comply with the request. It is permissible to charge a fee to the person making the request for employee time necessary to find and prepare the records to respond to the request, which can include copying or other actual costs. If there will be a fee, the response to the request will describe the fee and the reasons for the fee. Any fee must be paid before records will be provided in response to a request.

Yes. KORA cannot be used to obtain names and contact information (directory information) for the purpose of solicitation. The response to a request for directory information typically includes a certification form that must be signed under oath (a notarized statement) affirming that the information will not be used for solicitation or any other prohibited purpose. If this certification is not given, the agency can and will refuse to comply with the request.

There are more than 300 specific types of records not covered by KORA, as defined by both state and federal law. In general, the types of records that are closed, or not covered by KORA, are those of a sensitive or personal nature concerning individuals, records where confidentiality is necessary for the effective and efficient administration of a governmental program, and records affecting confidential information. If a record has been requested that is closed to public disclosure, the response to the request for the records will state that the record is closed and will also give the legal authority under which the record is closed.

No. KORA requests must be for existing records, not information. KORA does not require that a record be created in order to respond to a request.

There are three options: (1) File a lawsuit in district court against the public agency; (2) File a complaint with the Lyon County Attorney; or, (3) File a complaint with the Office of the Kansas Attorney General. Complaints filed with the Kansas Attorney General must be filed on the form provided by that office online at: www.ag.ks.gov. The matter will be handled by the court or by the Lyon County Attorney or by the Attorney General’s office through their regular procedures. The outcome will be either confirmation that the records are closed, or, that the agency must provide the records. If the agency knowingly violated KORA or did not have a good faith reason for denying the request for records, the agency could be fined and ordered to pay actual costs, including attorney fees, of the person who made the request.

The most essential element in Student Academic Freedom is the “freedom to learn.” This is a very broad phrase that has been addressed by the Association of American Colleges and Universities (AAUP) in its “AAUP Policy Documents and Reports” to mean that the minimal standards of academic freedom of students that apply in the classroom, on the campus, and in the larger community includes these freedoms: (1) freedom of discussion, inquiry, and expression in the classroom and in conferences with the instructor; (2) freedom to organize and join associations of students; (3) freedom to examine and discuss issues and express opinions publicly and privately on campus; (4) freedom to invite and to hear guest speakers; (5) freedom individually and collectively to express views on issues of institutional policy; (6) freedom to participate in the formulation and application of institutional policy affecting academic and student affairs; (7) editorial freedom of student publications; and, (8) freedom of speech, peaceful assembly, and right of petition. Each of these freedoms are derived from the First Amendment.

Yes. A student who is enrolled as a student of the university at the time any academic freedom issue arises is covered by Student Academic Freedom. It does not matter whether the student is on campus, at a remote location, full time or part time, degree seeking or non-degree seeking, or any other status. All that matters is that the individual is enrolled as a student at the university. Prospective students and former students are not protected by Student Academic Freedom.

Yes, to the extent that the issue in controversy is protected by the First Amendment and/or by contract law. Courts have described Student Academic Freedom as protected students’ rights to freedom of speech, press, and association on campus. University policy may expand or further define and describe these issues through policies addressing student rights and obligations. Contract law principles are typically used in court to apply university policies to a case.

Yes. A university can and does set standards for student, as well as for faculty and staff conduct. These conduct policies are enforceable unless it can be shown that a particular policy violates state or federal law, including the First Amendment.

Yes and no. No when the standards interfere with Student Academic Freedom. However, yes, when describing conduct related to instruction and learning assessment, as well as reasonable classroom conduct (such as no eating or drinking during class, requiring discussions to be related to relevant course topics, or measures taken to prevent academic dishonesty). An instructor does have a lot of authority over what happens in class and in meeting course requirements. The instructor’s authority weakens greatly when intolerance is shown to legitimate, course related student inquiry, criticism, or expression.

It depends on the nature of the alleged violation. If it has to do with an instructor’s behavior, a grade, an accusation about the student’s own behavior, or anything related to course issues, the student should follow their academic department/school or college policy for making a complaint or for appealing an action that has been taken. If it has to do with action by the university, a school or college, or a department that is not related to a course issue, the student should follow the applicable university policy that addresses the issue, or, if there is no such policy, Student Affairs can be contacted for assistance.

No. The university is free to handle the situation as it determines is best.

A number of questions have arisen in regard to summer camps and whether or not they are required to be licensed. This document was created to provide some guidance on what programs need to be licensed and the process for licensing. The Kansas Department of Health and Environment (KDHE) is responsible for enforcing the laws and regulations regarding licensure of child care facilities and makes the ultimate determination as to which programs are required to be licensed. Any specific questions about child care licensing should be directed to KDHE by contacting (785) 296-1270 or kdhe.cclr@ks.gov.

As indicated above, KDHE is the administrative agency that is responsible for enforcing laws and regulations related to child care licensing. While Emporia State University does not have role in enforcing the laws and regulations on child care licensing, it does have a policy that requires organizations or units on campus, upon request, to provide proof to the University that they possess the appropriate license as may be required by law or regulation.

It is a violation of Kansas law “for any person, firm, corporation or association to conduct or maintain a maternity center or a child care facility for children under 16 years of age without having a license or temporary permit therefor from [KDHE].” An exemption from licensure exists in the statute for “summer instructional camp[s]” that:

- Are operated by a Kansas educational institution (includes Emporia State University);- Is operated for not more than five (5) weeks;- Provides instruction to children all of whom are 10 years of age or older; AND- Is accredited by an agency or organization acceptable to KDHE.

Under Kansas law, a “child care facility” is defined as “[a] facility maintained by a person who has control or custody of one or more children under 16 years of age, unattended by parent or guardian, for the purpose of providing the children with food or lodging, or both.” KDHE further divides child care facilities into categories with summer camps falling into the category of a “school age program.”

The Kansas Administrative Regulations require that a person have a temporary license or permit from KDHE to operate a school age program before children or youth begin attending. The regulations specifically state that the following are required to have a temporary permit or license:

- Programs, which are not instructional classes or activities, that are designed to allow two or more school-age children on a drop-in or enrolled basis to attend 12 hours a week or more for more than two consecutive weeks.

- Programs of whom the public agency funding the program requires the program to be licensedas a child care facility.

- Programs that are day reporting programs for children 10 years of age or older.

- Programs that are specialized treatment, therapeutic, correctional, or rehabilitative programs for school-age children or youth that children or youth attend 12 hours a week for more than two consecutive weeks.

The following are excluded from the definition of child care facilities:

- A program which is established by the board of education of a school district, operated before or after regular school hours during the regular school term, and maintained for any or all of the following purposes: (1) Providing pupils with additional time to achieve learner exit or improvement plan outcomes; (2) giving pupils remedial instruction or independent study assistance; (3) affording pupils an opportunity to strengthen or attain mastery of basic or higher order thinking skills; and (4) conducting special projects and activities designed to enrich and enhance the educational experience of pupils.

- A program which is established by the board of education of a school district and operated during the summer months for the purpose of giving remedial instruction to pupils or for the purpose of conducting special projects and activities designed to enrich and enhance the educational experience of pupils, or for both such purposes.

- An instructional class or activity in which a child or youth is enrolled for the purpose of participating in only one specific subject or skill-building area, including religious instruction in a specific doctrine or tenet, academic or remedial instruction, a basketball clinic, a baseball league, dance or drama class, or a class in martial arts.

- A program of activities that serves exclusively youth who are 16 years of age and older.

- A program that is operated by a local unit of government or school district and that operates for no more than four consecutive hours per day or for no more than two consecutive weeks.

An individual or organization may submit an Inquiry Regarding Licensure School Age or Drop In Program (Form CCL.360, Rev. 3/2017) to KDHE to determine whether or not a license is required or to verify that a license is not required. A minimum of 30 days is required for a written determination of licensure.

An individual or organization may submit a Request for Exception (Form CCL.031, Rev. 01/2022) to the local child care facility surveyor. A minimum of 90 days is required for processing a Request for Exception.

Emporia State University is not responsible for issuing licenses or enforcing licensing requirements. The information contained in this guidance is based on publicly available information and information provided by a third party. While efforts have been made to ensure this guidance includes the most up to date and accurate information, the information contained in this guidance is subject to change and it is the responsibility of the individual or organization to ensure they are in compliance with Kansas laws and regulations. Emporia State University is not responsible for any individuals or organizations failure to comply with licensure requirements.