The academic advisor is on the "front line" of the college or university in dealing with students.  It is a critical position, and the success or failure of the student's education and growth is influenced greatly by the advising function.  In today's litigious atmosphere, the advising function is more critical than ever.

            Academic advising occurs under the umbrella of academic affairs.  The courts have always hesitated to enter the academic arena and substitute their judgment for that of the academician.  In doing so, they have recognized the academic freedom which protects academic decisions, including advising decisions.  They have recognized also that their repeated presence in the academic community possibly could cause deterioration in the otherwise beneficial student-faculty relationship.  Thus, if academicians do not abuse their discretion in dealing with students, they need not fear judicial intervention.  The courts will intervene, however, if evidence exists of arbitrary or negligent treatment of students or a denial of their protected rights.  The increasing number of court decisions dealing with classroom and academic matters attests to the growing judicial sensitivity to students' rights in academic affairs.  The advisor's job falls within this academic affairs area, and, thus, advisors must understand the legal issues involving four major areas:  the contractual relationship between student and institution, guidelines governing privacy of student records, the concept of privileged communications, and academic due process and the need for grievance procedures.
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CONTRACTUAL RELATIONSHIP

            In academic affairs, a contractual relationship exists between the student and the institution.  The basic provisions of the college catalog, recruiting brochures, various bulletins, and the student handbook become part of the contract.  The institution sets forth certain requirements for passing courses and for successful completion of programs and subsequent graduation.  If students fail to meet the required standards, they can be penalized through such action as dismissal, suspension, or failure to graduate on schedule; if the institution fails to respect its own regulations, then the student may seek judicial relief.

            An institution may create certain contractual obligations through statements in its publications.  Advisors' obligations and responsibilities usually appear in an advisor's handbook and often in publications readily available to the student.  An increasing emphasis on quality advising to enhance retention brings added responsibilities to the advisor.  More and more advisors not only are expected to understand such things as scheduling and registration procedures and degree and program requirements, but also they may be expected to function as a referral service or possibly as career counselors.  Thus, if institutions promise such services from their advising system, they should ensure that their advisors can deliver these services.  Where an advisor did not, or could not, perform his contractual obligation, then possibly liability could be present.  Thus, institutions should be conscious of an advisor's obligations which might be created by unequivocal statements regarding advisors' responsibilities.

Most institutions' catalogs state that the ultimate responsibility for knowing degree requirements rests with the student.  This type of statement normally would protect advisors if they commit an advising error.  Generally, the advisor is not going to be held personally liable for erroneous advising in the absence of gross negligence, irresponsible behavior, or arbitrary or capricious treatment of the student.  Advisors should keep notes of their discussions with students during advising sessions.  An accurate record of advising sessions would help solve any disputes over the content of previous advising and also serve as a legitimate protection against claims of erroneous advising

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THE BUCKLEY AMENDMENT:  ADVISOR'S RESPONSIBILITIES AND STUDENT'S RIGHT TO PRIVACY

            Since advisors maintain educational records -- records of advisees' grades and other academic information -- they must understand the provisions of the Family Educational Rights and Privacy Act of 1974 (commonly referred to as The Buckley Amendment).  Basically, this act provides students with access to information placed in their advising files.  Furthermore, it ensures that only school officials with a legitimate educational interest may see the student's file.  The student's permission must be obtained before any other party may have access to the student's file.  Thus, advisors, upon request, must allow students access to their advising file.  This fact, however, does exclude a student's right of access to personal notes that the advisor may have made during the advising sessions.  Under this Act, these notes constitute records made by educational personnel and kept solely in their possession.  Advisors may allow someone who temporarily performs his/her advising duties to see the notes; if the advisor is to be replaced permanently, however, he/she should remove any personal notes from the student's file before transferring the file to the replacement.

            Under legislation, the student has the right to an informal hearing regarding material in his record.  If at this hearing the student does not receive satisfaction, then he/she may insert explanatory material in the file.  The Act specifically denies students the right to a hearing regarding grades received.  The student, however, may challenge the accuracy of transferring grades to the student's record.

            Information in the file may be sent to parents of financially dependent students without the student's written consent.  The registrar's office usually maintains information regarding a student's status as a financial dependent.  Institutional policy, however, will determine whether or not information must be sent to parents without the student's consent.

            According to the Buckley Amendment, a record also must be kept of requests received from school officials to obtain information from the student's file.  The record should not only identify the official making the request, but also the official's legitimate educational reason for requesting the information.  The record should remain in the student's file.  Each institution is individually responsible for determining which parties qualify as "school officials" and what constitutes a "legitimate educational interest."  Advisors should familiarize themselves with their institution's policy governing this matter, as well as other institutional policies regarding implementation of the Buckley Amendment.

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PRIVILEGED COMMUNICATIONS

            Although the law recognizes the student's right to privacy of his/her educational records, it also recognizes the advisor's right to privileged communications.  Thus, in an effort to help a student, advisors can discuss confidential information regarding that student with other appropriate individuals.  The courts generally will respect the right to such communications and will not hold the advisor liable for statements considered as privileged communications.  This right, however, is not an absolute one, and advisors must exercise good judgment in making all confidential statements.  To determine the appropriateness of confidential discussions, an advisor should simply ask if such a discussion would serve the student's best interest.

            At times, students will come to advisors with personal problems; normally these problems should remain confidential.  In some instances, however, a student may tell the advisor of certain intentions that would prove harmful to the student or possibly to others, such as the intention to commit suicide or the desire to harm another person.  Although the statements are made in confidence, an obligation rests with the advisor to disclose such information to an appropriate party, such as parents, an intended victim, a school psychologist, or police.

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ACADEMIC DUE PROCESS

            The courts have mandated that students receive due process guarantees of notice and hearing in disciplinary cases, but students with grievances concerning academic affairs, such as situations involving erroneous advising, disputed grades, or alleged arbitrary course requirements, generally find themselves without due process guarantees.  The courts, to this date, have not mandated legally what constitutes due process in academic affairs.  Courts generally will respect the institution's procedures for handling academic affairs cases, as well as their decisions resolving these cases.  As previously indicated, the courts will intervene in cases involving seemingly arbitrary or capricious treatment of a student.  The voluntary application, however, of the spirit and principles of due process to academic affairs can reduce the incentives for legalism and reliance upon the courts by students when they feel aggrieved.  With clearly defined grievance procedures in place, courts will decline to intervene until a student exhausts this administrative remedy.  Thus individual departments or divisions of the institution should outline procedures that students will follow in registering any grievances resulting from erroneous advising or any other action taken by the advisor.  The following suggested procedures should not be construed as specific prescriptions to cover every case, but rather as a guideline:

            1.         Institutions should define clearly and publish the responsibilities of advisors and students in the advisor-advisee relationship.

            2.         Information the student is expected to know, such as academic requirements for continuance and graduation, should be clearly specified and publicized.

            3.         A well-documented and orderly procedure of appeal should be established and promulgated.  A committee should be appointed in each department or division or one committee for the entire institution, if that is deemed appropriate, which would hear complaints by students against advisors for alleged advising errors or negligent and irresponsible advising.  The advisor against whom the allegations have been made should receive all due process rights in defending his/her actions.

            Implementation and promulgation of these recommendations would not open a Pandora's box with a proliferation of student complaints against advisors.  Rather, advisors would maintain a responsible attitude toward students, and students would understand more clearly their responsibilities in the advising process.  The channeling of complaints through an appointed committee would formalize a fair and reasonable procedure which does not exist on many campuses today.

            Two elements have combined to cause an increase in the number of academic affairs cases:  arrival of consumerism to the campus and the lowered age of majority.  Consumerism on campus today considers whether or not an institution delivers to the student the product it claims in its various publications, as well as in oral presentations.  As legal adults, by virtue of the lowered age of majority, students must accept more responsibility for their actions on campus and thus also may have a great inclination to press charges against the institution when they believe they have received arbitrary or capricious treatment.  This does not mean that all students might file a court suit when they reach the age of majority, but since they must accept the responsibilities of that status they will most likely be more zealous of their rights.  With these prevailing conditions and the fact that quality advising is fast becoming a criterion for promotion, tenure, and salary increases, advisors should seek to understand the legal issues related to advising.  This understanding will ensure a responsible attitude toward students and protect their rights as well as those of the advisor.

            By knowing the current legal parameters and by practicing the "golden rule," advisors will create and maintain those policies and practices that respect the worth and dignity of each student.  By doing so, they will help create a better climate for reducing the incentives for legalism and respecting the rights, freedoms, and responsibilities of all (Young, 1982, pp. 41-45).

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