The academic performance of students: legal and ethical issues

Elizabeth G. Johnson, DSN, RN

Nursing faculty have many things to consider as they assist students in the learning process. Developing curriculum content, choosing teaching strategies, and developing student evaluation plans can be major areas of focus. However, in carrying out these functions, faculty must also consider the legal and ethical concepts that influence the process and product of nursing education.

Just as nurses in practice have guidelines, nurse educators are guided by legal and ethical principles and policies. Nursing faculty are responsible for understanding the broad legal and ethical principles that apply in all circumstances, as well as those specific to their own setting. Major problems can occur if faculty lack an understanding of these principles and policies and are unable to apply them appropriately.

Many potential problems can be avoided if faculty take a proactive approach to anticipate student concerns. Faculty members who treat students with respect, provide honest and frequent communication about progress toward course goals and objectives, and are fair and considerate in evaluating performance are less likely to encounter student challenges. A learning environment that supports student growth and questioning is likely to reduce the incidence of problems, especially litigation. Suggestions for avoiding such problems are discussed later in this chapter.

The goal of the educational experience remains that students develop knowledge, skills, and values that will enable them to provide safe, effective nursing care. Nursing faculty who are able to apply general legal and ethical principles are much more likely to play their part in effectively meeting that goal.

This chapter provides an overview of the legal and ethical issues related to student academic performance that nurse educators most commonly face in the classroom and clinical setting. The chapter includes a discussion of the importance of student–faculty interactions and the legal and ethical issues related to academic performance, including the provision of due process, the student appeal process, assisting the failing student, and academic dishonesty.

Student–faculty interactions

The student–faculty relationship that is developed during the teaching and learning process is a very important one. Students have often identified student–faculty relationships as the relationships that most often affect learning. The Sullivan Commission Report (2004) identified several factors that “significantly determine the quality of the educational experience” (p. 84) and the student–faculty relationship is among those. There is little doubt that a positive interaction between faculty and students is likely not only to decrease legal issues but also to promote student success.

The National League for Nursing (2005) has asserted that the focus of the faculty should be on establishing a learning environment that is “characterized by collaboration, understanding, mutual trust, respect, equality, and acceptance of differences” (p. 4). Such a learning environment fosters professional growth and development on the part of both students and faculty.

Faculty in the classroom and in clinical settings encounter students whose backgrounds and learning needs are extremely diverse. Faculty who are able to address the needs of students from an educational perspective as well as establish positive interpersonal relationships with students of varied backgrounds will make positive contributions in assisting students to meet the desired outcomes. The challenge for faculty in assisting students is to identify ways to address these varied needs. To successfully assist students, faculty must understand and appreciate cultural diversity and be able to use multiple learning strategies to assist students with varying learning styles and needs. The student role in the educational process has changed and must be one of active involvement. When faculty view students as partners or colleagues in an educational experience, they promote the development of a relationship that supports student growth and development and the attainment of educational goals and objectives.

The first step in the process of developing a learning environment that encourages collaborative and positive student–faculty interactions requires faculty to carefully examine and develop an awareness of their own beliefs and values about the teaching–learning process. Working collaboratively with students will require faculty to adopt strategies that involve active student participation and do not place faculty in the role of having sole responsibility for determining learning experiences. Activities such as cooperative group work, debate and discussion, role playing, and problem-solving exercises are examples of interactive teaching strategies that shift the focus from the faculty to the student. Such a pedagogical shift in teaching may also require faculty to leave behind the “safety” and control of the classroom lecture and develop more fully the skills necessary to successfully incorporate interactive teaching strategies into the classroom. Chapter 15 provides further discussion of teaching strategies that promote active learning.

Another important step in the process of developing a positive learning environment is examining attitudes and beliefs that students bring to the learning environment. Students may lack confidence of their abilities in the academic environment, especially those who are first-generation college students and lack role models who have been successful in pursuing higher education. Empowerment of students can occur when faculty demonstrate a sense of caring and commitment to students, and use courtesy and respect in interactions. Having a role in developing their own learning experiences can also prove to be an empowering experience for students.

How can nursing faculty successfully incorporate this concept of empowerment and equity into student–faculty relationships? Educators can design learning activities and projects that demonstrate collaborative learning and collegial interactions between faculty, students, and nurses in practice settings (Halstead, 1996). For example, the use of computer-mediated communication, such as e-mail and online discussion forums, tends to remove the elements of status and power from communication, thus allowing a freer exchange of information. Integrating content and discussion about empowerment, collaboration, collegiality, and teamwork throughout the curriculum can also help nurture positive student–faculty interactions. Faculty involvement in orientation programs, mentoring initiatives, academic advising, and student organizations can help promote positive student–faculty interactions outside the classroom (Halstead, 1996). Ongoing, open dialogue with students that results in clear communication of mutual expectations and responsibilities is an essential component of all successful student–faculty interactions, as is illustrated in the remaining sections of this chapter.

Legal considerations of student performance

An established responsibility of faculty in nursing education programs is the evaluation of student performance in the classroom (didactic) and clinical setting. This responsibility carries with it accountability because the outcomes of such evaluation have a major impact on the student’s progress in the course and even status in the program. In addition, faculty serve as the safeguard for society at large from practitioners who have not demonstrated the ability to practice safely. The courts have consistently affirmed faculty members’ responsibility for evaluation and have for the most part practiced “judicial deference”—meaning that the court has not interfered with the faculty’s expertise in evaluation of student academic performance—as long as due process has been provided and evaluation is deemed fair and just (Smith, 2005). However, the evaluation process must be based on principles that ensure that students’ rights are not violated.

Student rights

Faculty must be aware that students enter the educational experience with rights, just as faculty have rights. The concept of “student rights” is a relatively new one in the legal system, developing over the last 5 decades (Brent, 2001). However, there is increasing evidence of the judicial system’s perception that student rights are important, and cases supporting and detailing this concept are increasing (for information about specific cases, see Brent [2001] and Guido [1997]). Rights of students that are addressed here are due process, fair treatment, and confidentiality and privacy.

Due process

Student rights in the broadest sense are protected by the Fourteenth Amendment of the U.S. Constitution, which limits the restrictions that government may impose on an individual. This amendment states that no citizen may be deprived of life, liberty, or property without due process of law and requires that the federal government provide due process for all citizens.

Due process, then, involves assurances that procedures are “fair under the circumstances” (Brent, 2001, p. 428). Because the Fourteenth Amendment refers to state or government action, a public institution is always accountable for due process. Private institutions may not be held to these same standards because they are not considered a government arm. However, many private institutions have adopted policies ensuring due process for their students. Although private institutions may not always be held to the due process standards, to avoid problems and potential litigation, all institutions must ensure that faculty actions are not perceived as “arbitrary, capricious, or discriminatory” (Brent, 2001, p. 428).

Student rights have their foundation in two categories of due process: procedural due process and substantive due process. Procedural due process refers to process steps and requires that “individuals whose rights are affected be entitled to appropriate notice and a hearing” (Osinski, 2003, p. 56). These guidelines mandate that individuals be provided with notification of the concerns and provided with an opportunity to be heard—or to present their case to involved parties in the decision-making process. Substantive due process involves the basis for the decision itself (or the substance of the decision) and is based on the principle that a decision should be fair, objective, and nondiscriminatory. Students who might challenge on this principle would seek to prove that a faculty decision was arbitrary or impulsive.

Other legal concepts that influence student rights come from contract law or theory. Students may also use these concepts in seeking action against an institution. Contract law is applied in this circumstance with the understanding that when students enter a university or college, they actually enter into a contract with the school. If students complete the degree requirements and follow the required procedures, then a degree will be awarded. The implied contract between the student and the school forms the basis for much student rights–oriented precedent law.

There is a difference between student concerns or grievances based on academic performance and those based on disciplinary circumstances. Academic concerns are based solely on grades or clinical performance, whereas disciplinary misconduct is based on violation of rules or policies within the school or department. Osinski (2003) reported that due process for academic challenges requires that students be informed of the problems and the need to improve, be given a time frame for doing so, and have an understanding of the consequences if they do not. When disciplinary action is considered, different rules apply. In this circumstance the individual must receive notice of the specific charge that is being made and the policy and code that has been violated. The student must have an opportunity to present a defense against the charges, usually at a formal hearing, but at least in writing. Because disciplinary dismissals may have more long-lasting effects on the individual, more complicated due process rules apply. Consider the due process rights of the student illustrated in the following scenario:

Jane Short is a sophomore nursing student who has completed the first nursing course with a barely passing grade. She had difficulty in performing the basic nursing skills, stating that having someone watch her made her nervous. She did not come to college with a strong academic background and has struggled in making the adjustment to the required higher-level thinking and need for decision making. However, she was able to complete the course requirements in the basic nursing course, although at a minimal level. As she progresses to the next course, she is having more difficulty. Her study skills need development and she has missed several classes. She is not doing well on tests and has been late for clinical on two occasions in the first three weeks of class. Her instructor has asked to meet with her to discuss these concerns. She informs Jane of the issues of concern and relates what needs to be done to address these concerns. She suggests some new study strategies and asks that Jane practice in the lab to become more comfortable with the procedures and skills. She also relates that continued absences and tardiness will negatively affect Jane’s classroom performance and her clinical evaluation. She reminds Jane of the School of Nursing Policy that states that students who miss one third of the clinical experiences will be automatically dismissed from the program. The faculty member tells Jane that she needs to demonstrate improvement in these areas within the next three weeks. The faculty member asks Jane to add her comments to the documents containing all this information and gives Jane a copy of the document explaining the concerns and including the suggestions for improvement as well as the consequences if no change occurs. The faculty member schedules times to provide regular feedback to Jane about her progress.

What has the faculty done to uphold Jane’s due process rights in this circumstance? The faculty member has made Jane aware of the situation and what needs to be done to improve it. She has made suggestions for improvement and provided Jane with a written copy of those suggestions and the consequences if no change occurs. Jane has been informed and duly notified and her due process rights have been addressed.

Fair treatment

Students have the right to expect that they will be treated fairly, consistently, and objectively. Standards of expectations for the course provide the objective guide for evaluation and must be communicated to students early and often. Course requirements should be consistent for all students, including classroom and clinical assignments. Students should receive equivalent assignments, even if they are not identical, that allow them to demonstrate progress toward meeting course objectives. In addition, students must be provided with opportunity and appropriate time to demonstrate the outcomes required in the course. Students cannot be held accountable for end of course outcomes on the first day of class and the same principle applies in the clinical setting. Students must be provided with time to learn and then evaluation can take place; students must clearly understand the difference in the learning and the evaluation portion of the clinical experience.

Confidentiality and privacy

Legislation that has been passed to protect health information and the privacy of patients should remind faculty of their obligation to protect information from and about students. The need for confidentiality in the faculty role is based in the same code of ethics that guides all nurses. Students have a right to expect that information about their progress in the program, their academic and clinical performance, and their personal concerns will be kept confidential.

In the course of the teaching role, faculty are often privy to information about students that is of a personal and private nature. Students often confide in faculty about events that may influence their performance in the classroom or may simply seek advice from persons they feel they can trust. This information, as in a nurse–patient interaction, must be guarded and held in confidence. Morgan (2001) pointed out the conflicts that nursing faculty often feel when deciding whether it is in the student’s best interest to divulge information of a personal nature. She suggested that there should be a “compelling professional purpose” (p. 291), such as protection of patients or helping the student achieve the goal of successful completion of the program, for disclosing confidential personal information. Faculty must exercise good judgment in sharing information, making certain that it is in the student’s best interest to do so and obtaining permission whenever possible. Faculty are often anxious to share a student’s strengths and weaknesses with other faculty members who will have the student in subsequent semesters. Faculty must seriously consider the implications of such a practice as a standard approach. A student’s performance or challenges in one class will not necessarily follow him or her to the next class. Informing other faculty members about an individual student’s strengths or weaknesses may provide prejudicial information and could be interpreted as unjust. However, alerting faculty to information that may affect patient or student safety may warrant discussion.

In addition to confidentiality, privacy, especially of student records, is essential. The Buckley Amendment (often referred to as FERPA or the Federal Educational Rights and Privacy Act) provides the basis for protection of student records. This law was enacted to assure that students older than age 18 have access to their educational records and to ensure that they have some input about who can receive information in that record without their consent. The amendment also mandates that a procedure be in place that allows students to contest information in the record that is inaccurate or that they do not agree with. In actual practice, one of the most frequent applications of this law comes when parents seek information about student progress or grades without student permission. Parents are often dismayed to find that they have no “right” to information about student progress, unless the student provides permission. It is imperative that faculty understand the components of this legislation and follow it implicitly. For example, faculty cannot post grades in any form in public, leave graded materials for students to retrieve in a public place, or circulate a printed class list with student IDs or social security information as an attendance list. All of these constitute violations of FERPA and make faculty and their institutions subject to prosecution.

Schools of nursing must follow the guidelines of the institution regarding FERPA but they must also give particular attention to guarding student health records. These health records are usually kept in a separate file and should follow Health Insurance Portability and Accountability Act of 1996 (HIPAA) guidelines. Student records and evaluation notes maintained by faculty during the process of course evaluation must also be guarded to protect privacy.

Guidelines for providing due process to students

Due process for academic issues

The potential for litigation always exists, even in the best of circumstances; therefore it is prudent to take actions and establish policies that decrease the likelihood that litigation will occur as a result of academic failure or dismissal. The following practices help keep students informed of faculty expectations and their progress in coursework and provide the basis for ensuring that students receive the information they need.

1. Provide a copy of student and faculty rights and responsibilities in formal documents. On admission to the program, students should be given a copy of rights, responsibilities, policies, and procedures that apply to students and faculty. Although institutions have the right to establish policies, they also have the responsibility to communicate those policies and guidelines to students and faculty. Policies and procedures that are in effect for all students in the institution, as well as those that are specific to a program, should be available and must be congruent. Policies should address progression, retention, graduation, dismissal, grading, and conduct. Students should also be informed of circumstances that will interfere with progression and those that would result in termination from the program. They should learn the process to follow in filing a grievance. These policies should be readily available and are usually published in faculty and student handbooks. Strategies that ensure that students have read and understand the information contained in these documents should be a part of the orientation process. In every course, faculty should plan to reinforce this information, including providing specific expectations for the course. Written specifics of requirements should be contained in the course syllabus and discussed with students on the first day of class.

2. Review and update policies in the handbook and catalog periodically. Published materials given to students and faculty should contain current information about academic policies and procedures. This serves to keep students and faculty informed about the policies and procedures they are subject to, and it is a requirement of institutional and program accreditation agencies. Regular review by faculty of policies and procedures ensures that faculty are aware of current policies and increases the likelihood that they will be consistent in following them.

3. Course requirements and expectations should be clearly established and communicated at the beginning of the course. The course syllabus should explain course requirements, critical learning experiences, and faculty expectations of student performance to satisfactorily complete the course. Schools commonly establish guidelines for information to be included in all syllabi developed for nursing courses, and faculty should follow these criteria. A course syllabus should include the following information, at a minimum: description of the course, course objectives, course credit hours, faculty responsible for the course, class schedule, attendance policies, teaching strategies used in the course, topical outlines, evaluation tools and methods, due dates for assignments, late work policy, and standards that must be met for students to pass the course. Many institutions also require that course syllabi include a statement about the need for students to notify faculty about desired accommodations for a disability. The syllabus for a course should be distributed on the first day of class to provide students the opportunity to understand and clarify course requirements.

4. Retain all tests and written work in a file until the student has successfully completed at least the course requirements, and in some cases the program requirements. Student assignments, tests, and evaluations are invaluable, especially in cases of academic deficiency that may result in a student challenge. All evidence of a student’s performance in a class should be kept at least until that course is completed. Faculty must be aware of institutional policy or standards that govern maintenance of records and should follow those. There are no universal rules for how long student files should be maintained, and the policy may vary from institution to institution. Student clinical evaluations often become a part of the student’s permanent file, although in some programs these are only retained until the student completes the program. The maintenance of files of student work and tests may also serve to decrease the likelihood of plagiarism of other students’ work. Knowing that faculty keep a copy of assignments and tests may make students less likely to attempt to claim other students’ work as their own. Files of student work may also serve as examples of assignments to share with evaluators during accreditation visits or to assist in outcome assessment efforts. Samples of student work may also be used to provide positive examples to other students. Faculty must obtain a student’s permission to share his or her work with others. Some schools choose to have students sign a standard form granting such permission and to keep this on permanent file.

5. Students should have the opportunity to view all evaluation data that are placed in the student file. Students have the right to see all documentation that has been used to determine an evaluation of their performance. Students also have the right to disagree with the appraisal of their performance and should be provided with an opportunity to respond to the comments of the evaluation with comments of their own. Faculty should ask students to sign and date the evaluation form to indicate that the evaluation has been discussed with them, while providing an opportunity for them to register their own comments on the form.

6. When students are not making satisfactory progress toward course objectives and the potential for course failure or dismissal exists, students must receive notification of and information about their academic deficiencies. Students should receive regular feedback about the progress they have made toward meeting class and clinical objectives throughout the course. If deficiencies occur, students must receive details of what behavior is unsatisfactory, what needs to be done to improve the behavior, and the consequences if improvement does not occur. Faculty should hold formal conferences with students who are in academic jeopardy, identify the deficiencies in writing, and work with the student to determine a plan to address the deficiencies. Both the faculty member and the student should sign the document to indicate mutual involvement in and agreement to the plan. Subsequent follow-up conferences should be held to note progress or lack of progress made toward achieving the agreed-upon goals and note revisions or additional strategies employed. All conferences should be documented in writing, and both parties should receive a copy of the documentation. An example of how this might occur was presented in the earlier example relating to Jane Short.

Faculty who fail to evaluate a student’s unsatisfactory performance accurately, through either a reluctance to expose the student to the experience of failure or a fear of potential litigation, are guilty of misleading the student, potentially jeopardizing patient care, and placing faculty peers in a difficult situation. Nursing faculty and even the university are responsible for preparing safe and competent practitioners and can be held accountable if they relinquish their responsibility for doing so (Smith, McKoy, & Richardson, 2001). Student deficiencies will eventually be identified and dealt with by faculty. Students might legitimately ask why they were not notified earlier in the educational experience of these deficiencies and accuse the “failing” faculty of prejudicial behavior. It is much fairer to inform students of their unsatisfactory behaviors when such behaviors are first identified. Informing students of deficiencies in a caring, constructive manner allows them the opportunity to improve performance; to not inform them denies them this opportunity and right.

These procedures help ensure that students receive the due process related to academic failure that is their right by law. Maintaining open lines of communication with a student who is not progressing is a key component in resolving such situations satisfactorily and decreasing faculty liability. Students are much less likely to sue if they perceive that they have been treated in a fair and impartial manner and have been given information throughout the process.

Due process for disciplinary issues

Students who are dismissed because of misconduct or disciplinary reasons should receive additional assurances that due process has been followed. A disciplinary action occurs when a student violates a regulation or law or has engaged in activity that is not allowed. Students must receive in writing a copy of the charges or concerns that are cited (Osinski, 2003). The information should include details about what policy or rule was violated, and enough information must be provided to ensure that the student can develop a defense against the charges. Osinski (2003) reports that students are usually granted the opportunity to speak on their own behalf and provided an opportunity to explain their actions. Students often are allowed to hear the evidence against them and to present oral or written testimony, and they may be allowed to call witnesses in their defense (Smith et al., 2001). If the student desires, legal counsel can be present to provide the student with advice but not to question or interview other participants in the proceedings. Legal counsel for the institution is usually available as well. No action should be taken by the faculty or university until a formal hearing has occurred. Depending on the institution, a councilor committee usually decides the outcome of the charges. Courts may be more likely to become involved in disciplinary actions since they involve less professional judgment and evaluation.

In the example presented earlier, if Jane Short’s absences continue in clinical and she misses enough clinical days that she is dismissed from the program, then the provision for due process as a disciplinary event must include more faculty action. The faculty member must provide written information about the school policy that has been violated (although she has hopefully done that at the earlier conference) and provide an opportunity for Jane to respond to the accusations. The process must provide for Jane to present a “defense” for her actions or an opportunity to explain her actions to those persons who will make the final decision about the outcome of her situation. In this circumstance, since the issue is a disciplinary one, faculty must take additional steps to ensure that due process rights are protected.

Grievances and the student appeal process

Even when a student has been treated in accordance with due process with a clear communication of policies and expected academic standards, it is possible that the student may wish to seek legal recourse in the face of an academic failure or dismissal. In such cases, the student may appeal to the court on the basis that faculty has acted in a capricious or arbitrary manner. Courts have traditionally not overturned academic decisions unless the student can prove that faculty did not follow “accepted academic norms so as to demonstrate the person or committee responsible did not actually exercise professional judgment” (Regents of University of Michigan v. Ewing, 474 U.S. 214 [106 S. Ct 507 1985]). In this case, a student who was dismissed from medical school brought suit against the university, citing that university faculty moved to dismiss him based on circumstances that were not rational and were capricious. The court ruled that the university faculty did have cause to dismiss the student and thus a “substantive due process claim” had not occurred.

There are other reasons that students may choose to bring suit against an institution. Breach of contract, described earlier, may be charged by students, particularly in private institutions, who may not be provided with due process protections. The court has generally followed the “well-steeled rule that relations between a student and a private university are a matter of contract” (Dixon v. Alabama Board of Education, 294 F. 2d 150 [5th Cir. 1961]). However, there is inconsistency in court cases that address grievances of contract issues depending on the substance of the case. Students may also make charges of defamation or violation of civil rights, including discrimination. Courts generally have not hesitated to analyze cases in which discrimination based on any parameter (e.g., race, gender, age, or disability) has been charged. Brent (2001) reported that the best way to avoid such litigation is to maintain policies that clearly demonstrate adherence to the institution’s and program’s guidelines, which must be in compliance with all federal and state laws regulating civil rights.

Goudreau and Chasens (2002) pointed out that recent cases in which nursing faculty have been charged with negligence in terms of protecting students from injury have also occurred. Student safety in the classroom, in the clinical area, and on clinical experiences must be a consideration of nursing faculty. Students must receive adequate preparation and instructions to avoid foreseeable risks and, as these authors stated, “Faculty members are obligated to be as concerned about students’ personal safety as they are about patient safety” (p. 45).

The student appeal process

Before seeking the assistance of the court system, students must first use all available recourse within the institution. Guido (1997) reported that the courts have generally relied on academic institutions to deal with grade disputes and have intervened only when due process questions come into consideration. Institutions of higher learning have established policies for hearing student grievances and appeals. See Box 3-1 for an example of such a procedure. The purpose of these guidelines is to establish common procedures to ensure that students are provided due process and that faculty rights are supported.

Box 3-1 Grades Appeal Policy – Indiana University School of Nursing, Indianapolis

The purpose of the Subcommittee on Appeals is to provide a grade appeal system that affords recourse to a student who has evidence or believes that evidence exists to show that an inappropriate grade has been assigned as a result of prejudice, caprice, or other improper conditions such as mechanical error, or assignment of a grade inconsistent with those assigned to other students. Additionally, a student may challenge the reduction of a grade for alleged scholastic dishonesty. In essence, the grade appeals system is designed to protect students from grade assignments that are inconsistent with policy followed in assigning grades to others in the course.

A grade will not be raised because a faculty member graded tests very severely, provided the faculty member applied the same rigorous standards to all students. Nor will proof that a faculty member has been antagonistic toward the student be sufficient cause to raise a grade unless evidence exists that such antagonism did in fact result in a lower grade. The grounds for appeal are limited. If you are not certain whether you have grounds for appeal, you should discuss your case with the Chair of the CCNF Undergraduate Student Affairs Committee.

General procedure:

The grade appeals procedure for IUSON requires that you resolve the dispute at the lowest possible level.