22 Aug Nurse Educator’s Role in Student Evaluation Significant physical, emotional, social, and financial investments are required to attend nursing school.? Failure is demorali

CHAPTER 3

The Academic Performance of Students⁎

Legal and Ethical Issues

Linda S. Christensen, EdD, JD, RN

Nursing faculty have many considerations in performing their roles as academic nurse educators. Developing curriculum content, choosing teaching strategies, developing student evaluation plans, and dealing with current academic issues 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 legal and ethical guidelines, nurse educators also have legal and ethical guidelines. Nursing faculty are responsible for understanding the broad legal and ethical principles that apply in all circumstances and those that are specific to their own academic educator practice. Major problems can occur if faculty lack an understanding of these principles 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. Nurse educators must have an awareness of the legal issues and regulations for their practice, and they must implement this knowledge within their role as an academic nurse educator. 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 most common legal and ethical issues related to student academic performance that nurse educators 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, academic dishonesty, and special issues affecting practice as an academic nurse educator.

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. 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 significance of this relationship has been well noted over many years. Mutual trust and respect have been identified as the basis for an effective relationship between the instructor and the student (Gaberson, Oremann, & Shellenbarger, 2015). Bastable (2014) noted that multiple relationship systems influence the students’ motivation, and the teacher–learner interaction is one of the significant relationships that can influence learning either positively or negatively. The National League for Nursing (NLN) has identified the importance of establishing a positive relationship multiple times over the past several years. The NLN asserted in 2005 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” (NLN, 2005, p. 4). Such a learning environment fosters professional growth and development on the part of the nurse.

The NLN clearly identified the importance of the student–faculty relationship within the Core Competencies of Nurse Educators (NLN, 2012a). The importance of interpersonal interactions on learner outcomes is noted (Caputi, 2015) specifically in NLN Competency II, which is focused on facilitating learning development and socialization.

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 and 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 in the classroom. Chapter 16 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 in their abilities in the academic environment, especially those who are first-generation college students without 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 provide a variety of motivational factors that will support students in meeting their specific learning needs (Bastable, 2014). Learning activities can be designed to promote positive faculty–student interactions. For example, the use of computer-mediated communication, such as email and online discussion forums, tends to remove the elements of status and power from communication, thus allowing a freer exchange of information. The use of learning laboratories introduces realism into student learning to promote preparation for actual patient care experiences (Oermann, 2015). Integrating content and discussion about empowerment, collaboration, collegiality, and teamwork throughout the curriculum can also help nurture positive student–faculty interactions. 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 rest 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 effect 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. In a precedent-setting case, the court clearly set the standard that it will not interfere with academic decision making regarding student progress and content (Board of Curators of the University of Missouri v. Horowitz, 1978). Other courts continue to follow the Horowitz court by repeatedly affirming faculty members’ responsibility for evaluation as long as due process has been provided and there is no finding of arbitrary or capricious facts. However, to ensure due process and avoid being viewed as arbitrary or capricious, the evaluation process must be based on principles that ensure students’ rights are not violated.

Student Rights

Faculty must be aware that students enter the educational experience with rights, just as faculty have rights. A few decades ago it would have been rare to find litigation involving a nursing student and the nursing program, but litigation involving nursing programs has dramatically increased. Many cases involving student litigation within nursing programs have their legal basis in the concepts of due process, fair treatment, and confidentiality and privacy.

Due Process

Due process is a term that is frequently used in education and may be misunderstood. The general concept of due process is based in fairness and is intended to ensure that certain rights are respected within the particular situation. There are two types of due process. Substantive due process refers to the fairness of the “outcome” in relation to the “infraction.” In other words, does the punishment fit the crime? It would most likely be a breach of substantive due process to dismiss a student from a course because he or she arrived a few minutes late to class. The second type of due process is procedural due process. Procedural due process ensures that the accused will receive notice and an opportunity to be heard. Providing the student with a clear notice of the potential issue and providing the student the opportunity to present his or her side of the situation is essential to meet the procedural due process requirements.

Student rights in the broadest sense are protected by the Fifth and Fourteenth Amendments of the US Constitution, which limit the restrictions that can be imposed on an individual. These amendments state that no citizen may be deprived of life, liberty, or property without due process of law and require that the federal government provide due process for all citizens (U.S. Const. amend. V & XIV).

Although the Fourteenth Amendment includes language referring to state or government actions (which includes public institutions), the principles of due process are applied by the courts to all educational settings. Within the educational setting, a 1961 case applied the principles of due process to a situation in which students were dismissed without notice and without a hearing (Dixon v. Alabama State Board of Education, 1961). In Dixon, Alabama State College, which was a segregated black college, expelled six students for unspecified reasons without a hearing, although the presumptive cause was that they participated in civil rights demonstrations. The appeals court ruled that a public college could not expel them without a public hearing. The judicial system expanded the holding of the Dixon case with Goss v. Lopez (1975), when the court clearly noted that the due process protections of Dixon applied to all students facing expulsion from a public institution, regardless of whether the institution is a grade school, high school, or college or university. The legal principle of due process has been extended to cases involving private college and university settings, upholding the student’s due process rights regardless of attendance at a public or private institution (Kaplin & Lee, 2014).

Student due process rights have their foundation in two types of due process: procedural due process and substantive due process. Procedural due process refers to a step-by-step process that includes both notice and an opportunity for the student to be heard at various levels and appeal options. Procedural due process affords the student an opportunity to be heard or to present the case to parties involved in the decision-making process. Table 3.1 summarizes the key elements of procedural due process.

Table 3.1

Sample Student “Due Process Procedure”a

Element Comment

Notice of the charges against the student Students must be given clear and complete notice of all charges against them.

Discovery rights and opportunity to present a defense The time between receiving notice of the charges and the time of any hearing must be sufficient to provide the student an opportunity to investigate the matter, obtain counsel if desired, and present a defense.

Hearing and confrontation rights (right to cross-examine witnesses, right to counsel) The student has the right to be represented by counsel, bring their own evidence and witnesses, have the opportunity to examine any evidence brought forth by the school, and cross-examine any witnesses brought by the school.

Impartial tribunal Throughout the process, all steps by the program must be fair and impartial. The tribunal must be made up of impartial individuals who are knowledgeable of any significant rules, procedures, and guidelines of such procedures.

Right to appeal; right to obtain a record of the hearing The student has the right to obtain a record of the hearing and appeal the hearing with a second impartial decision maker.

a Based on procedural due process guidelines

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 this principle would seek to prove that a faculty decision was arbitrary or capricious. Substantive due process has often been summarized as asking, “Did the punishment fit the crime?”

Other legal concepts that influence student rights come from principles of contract law. 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. Courts may view institutional documents as contracts, regardless of whether there may be a written disclaimer on the particular document that the institution does not intend the document to be a contract between the institution and the student.

A common example of a document that is often implied to be a contract is a course syllabus. The course syllabus may contain a statement that it is not intended to be a contract between the institution and the student but is often viewed by the court as being an implied contract. Even in a situation in which students agree to a proposed change in the syllabus, the original syllabus terms may govern in a dispute because the students who are voicing agreement may be viewed as unable to object without teacher reprimand or harassment from other students. Additionally, students have successfully won cases against educational institutions based on contract theory when the educational institution was determined to be in breach of implied contract because they did not follow its own policies and procedures (Boehm v. U. of PA. School of Vet. Med, 1990; Schaer v. Brandeis University, 2000).

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. Academic due process includes the requirement that the student be informed of the academic issue, the requirements necessary to meet academic standards, a time frame for meeting the academic requirements, and notice of the consequences if the academic standards are not met. When disciplinary action is considered, the concept of due process is applied with a higher degree of scrutiny. 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 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 3 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 laboratory 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 3 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 and 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 within the student–instructor interactions.

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 an 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 before evaluation can take place; students must clearly understand the difference in the learning and the evaluation portion of the clinical experience.

An example of violating the principle of fair treatment might occur when a faculty member allows one student extra credit in a course but does not afford the same opportunity to all students to increase their grade. Clinically, holding students to different standards of evaluation will be considered a violation of the principle of fair treatment. If the instructor consistently gives a student less challenging assignments and then evaluates the student as not providing a complex case, the issue of fairness is again relevant.

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 and common law regarding privacy 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 can lead to a conflict for the instructor, because as nurses, the instructors might have a tendency to respond in a therapeutic manner (Gaberson et al., 2015). It is important for the instructor to remember that their primary role is that of faculty, not health care provider. There must be a compelling purpose, such as the safety of the student or following institutional policy, for the instructor to disclose personal student information. Unless there is a need for disclosure of information to protect the student, faculty should respect the student’s privacy. This guideline is consistent with the legal precedent set in Tarasoff v. Regents of the University of California (1976). In Tarasoff, the court held that the patient–provider confidentiality rule did not apply when there was a reasonable belief of impending harm to another individual caused by a patient disclosure.

It is easy for caring faculty to disclose private student information based on the belief that it is in the student’s best interests. But without the student’s consent or the faculty’s reasonable belief that harm may come from nondisclosure, the faculty would be violating the student’s right to privacy to share confidential information without student consent. Faculty are often eager 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 and violate the student’s right to privacy. However, alerting faculty to information that may affect patient or student safety may warrant discussion. This is a difficult concept for nurse educators and most often more information is shared than would be considered necessary, at the expense of creating bias against the student.

In addition to confidentiality, privacy—especially of student records—is essential. The Federal Educational Rights and Privacy Act of 1974 (FERPA), often referred to as the Buckley Amendment, provides the basis for protection of student records. This law was enacted to ensure that students older than age 18 have access to their educational records and to ensure that they have some input about who can receive the 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 occurs 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. An excellent reference of the requirements of FERPA can be obtained online through the US Department of Education website (http://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html).

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 the Health Insurance Portability and Accountability Act (HIPAA , 1996) guidelines. Student records and evaluation notes maintained by faculty during the process of course evaluation must also be guarded to protect privacy.

Student privacy must be strictly guarded. Whether based in common law privacy standards, FERPA, or HIPAA, students have a legal right to have their information protected within the educational system.

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 and 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 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&#x2019