Below are some basic legal guidelines to help faculty determine whether their classroom policies are legally enforceable or supportable. These guidelines are not intended to be comprehensive, but they should serve as a good starting point for faculty to "test" policies before they implement them.
Generally, the answer to the question, "Is this classroom policy enforceable?" will be either--
"Yes, if . . ." or "No, unless . . ."
the policy or practice imposed by the faculty member:
- allows different treatment for a particular student as a reasonable accommodation of a disability (such accommodation is not mandated if it requires a "fundamental alteration of the academic program");
- allows different treatment for a particular student as an accommodation of a "sincerely held religious belief" (the University must be able to establish that it has a "compelling interest" in denying such accommodation or that providing the accommodation imposes an "undue hardship" on the University);
- is "rationally related" to an educational purpose; in other words, you are able to provide a rational justification for imposing the policy or practice;
- is not "arbitrary and capricious," in other words, it is imposed consistently by the instructor;
- is not imposed maliciously;
- is not applied, or excused, on the basis of race, gender, or national origin; or on the basis of religion or disability, when reasonable accommodation to those factors is required.
Example: No excused absences
There is no such thing as an excused absence, including involvement in an official sports event or a religious holiday.
There is no University policy excusing students from class for participating in athletic events, so that part of the policy is clearly enforceable. However, University Policy 409, Religious Accommodation for Students, requires that the University provide reasonable accommodations, including a minimum of two excused absences each academic year, for religious observances required by a student’s religious practice or belief. Such reasonable accommodations must be requested in accordance with the procedures in Policy 409, and include the opportunity for the student to make up any tests or other work missed due to an excused absence for a religious observance. An accommodation request imposes responsibilities and obligations on both the University and the student requesting the accommodation. UNC Charlotte faculty are required, as part of their responsibility to their students and the University, to adhere to Policy 409 and ensure its full and fair implementation by reasonably accommodating individual religious practices or beliefs. Regardless of any accommodation that may be granted, UNC Charlotte students are responsible for satisfying all academic objectives, requirements and prerequisites as determined by their instructor and the University.
Example: Identifying disabled students
A teacher has been asked to find a student in class to assist a disabled student with note-taking. After identifying the disabled student, the teacher appoints the student sitting next to her as note-taker.
Two sources of Federal law prohibit the public disclosure of the student's disability as described here. The Buckley Amendment generally prohibits us from disclosing student information without the student's written consent (except for a few categories of "directory information"). The ADA is particularly stringent in requiring that information about a student's disability be disclosed only as absolutely necessary to enable the University to meet its obligations to provide reasonable accommodations. Disabled students who desire accommodations must identify themselves to the Disability Services Office, which facilitates appropriate accommodation arrangements. Disability Services procedures require that the disabled student deliver a note-taker accommodation request form to the professor and that the professor ask for note-taking volunteers without identifying the disabled student.
Example: Dismissing a whole class
Students come to class unprepared. Teacher dismisses the whole class and counts each student absent.
Arguably, all students have a contract with the University to provide a certain amount of education. This practice may prompt an innocent student's claim that dismissing the class breaches his contract with the University. The student who has shown up prepared has kept his part of the bargain, while the University is not doing so. In addition, counting an innocent student absent may give rise to a grade challenge, if the teacher also has a policy that grades are negatively affected by absences. A reviewing court might have trouble finding a rational basis for 1) declaring absent students who were not, and 2) academically penalizing a student who has done nothing wrong. Finally, a professor should consider whether this is a good teaching practice.
Example: Messages on clothing
A student wears a t-shirt with the words "f--- racism" on the front. The instructor tells the student that she must wear the t-shirt inside out or leave the classroom.
This practice may interfere with a student's First Amendment right to freedom of expression. However, if the message on the shirt in fact disrupts the class and interferes with the learning process, such disruption may overcome the student's free expression interest. The disruption must be real; if no students in the class are disrupted, and the instructor simply dislikes or disapproves of the message on the t-shirt, this practice may not be enforceable.
Example: Marking students absent
Students leave the class after waiting 15 minutes for the professor. The professor arrives five minutes after the students leave and counts all students absent for the day.
Arguably, this practice is simply unreasonable, and counting students absent may give rise to grade challenges, if the professor also has a policy that grades are negatively affected by absences. In addition, a student may claim that the University breached its contract by failing to perform its duties of teaching. Again, the professor should consider whether this is a good teaching practice.
Example: Disruptive speech
A student says aloud in class: "This test was bullshit." The instructor demands an apology and that the student leave the class. The student refuses. The teacher tells the student to officially drop the class.
A student may claim that this practice interferes with their First Amendment right to freedom of expression. However, this statement could, and probably would, substantially interfere with the instructor's ability to conduct and control the class and thus may undermine the credibility and authority of the instructor. If the statement disrupts the class or undermines the instructor's credibility and authority, and it therefore interferes with the University's interest in maintaining control of the class so that teaching and learning may proceed, such disruption would, in our opinion, overcome the student's free expression interest. The disruption must be real; if no students in the class are disrupted, and the instructor's credibility and authority are not threatened, this practice may not be enforceable.
If you have additional concerns about the legal enforceability of a classroom policy, please contact the Office of Legal Affairs.
Updated July 2023