Legal Issues Abroad

Goals Issue Spotting When in Doubt, Ask

Outline Sample Laws Legal Risks Legal Concepts ADA/Section 504 FERPA Clery Act Vendor Selection Title IX Inadequate Crisis Planning or Orientation Legal Concepts High Risk Activities or Locations Negligence Reasonable Care AoR, Exculpatory/Indemnity Due Diligence These are the questions that would be asked in court if a case were brought for injury abroad.

Disability Laws ADA and Section 504 Prohibits discrimination against persons with disabilities *Screening Out Prohibited *If new request for reasonable accommodation abroad, consult DSS *Health Information – Confidential and Available Phil Magalong, the DSS Director, is going to talk more in depth about accommodations while abroad. Screening out = asking an applicant about a disability and prohibiting or dissuading from participation. We ask certain health information questions AFTER admission. But students are encouraged to get in touch with DSS ASAP in the process DSS will work with you if there are any accommodations you need to be aware of before leaving. But if a new request comes in, contact DSS Health information form contains very private information. Need to balance keeping information confidential but need to have that information since it was provided. University on notice Bird Case: Lewis and Clark college sued because the college promised they could provide her reasonable accommodations in her wheelchair, but she alleged 22 locations were inaccessible (assistance to leave her lodgings, group excursions, etc) – Important not to overpromise

FERPA Protects student education records University employee’s access Health or safety emergency exception * Think about how you will safely store and access records Directory information (i.e. name, address, photo) may be released w/o permission of the student unless the student has placed a hold on release

Campus Security Act Reports first to local police in the host country Mandates the Reporting and Disclosure of Certain Crimes by Program Directors Crimes to report - see handout Location: non-campus building or property Reports first to local police in the host country *Then report the matter to DPS at tel. (202) 319-5111 and to gregoryk@cua.edu Alcohol and Drugs arrests or referrals if illegal in host country, Illegal Weapons Possession, Domestic violence, stalking, and dating violence, Hate crimes Non-campus building or property for Catholic University purposes includes any foreign campuses or building or property owned or controlled by the University and used for educational purposes (including through a lease agreement). 

Title IX Prohibits gender discrimination Includes sexual harassment and sexual violence Important to receive full T9 Training Frank Vinik – T9 Coordinator *You may have to initially manage Take steps to ensure safety of students Preliminary corrective measures Ex: termination of vendors or the suspension of on-site faculty and/or students from participation in any or all program activities

Negligence Failure to use reasonable care Questions to consider: What would a reasonable person do in this situation? Questions to consider: What did you know? What should you have known? How much control did you have? Were best practices followed? These are the questions that would be asked in court if a case were brought for injury abroad.

Forms Assumption of Risk Exculpatory Clause Indemnity Clause Asks if an individual knew the risks of participating in an activity and voluntarily took on those risks Exculpatory Clause Release from liability for University Indemnity Clause Student agrees to repay University for loss, damage, or liability Medical Consent Authorized emergency treatment for student Enforceability?

Due Diligence How do you evaluate the reliability and services you procure? Transportation** (insurance) Housing Restaurants Tour Guides or Operators Medical Facilities Excursions Other Vendors Whenever possible, site visits These are the questions that would be asked in court if a case were brought for injury abroad.

Planning Check state department advisories Check with ASIRT (Safe International Travel) for advice on routes Onsite orientations Have emergency plans in place, with back up Train everyone on the plan Know your students and any unique issues *Ask Global Ed

Actual Scenarios to Consider McNeil: Negligent supervision of medical care? Fay: Negligence of supervisor not accompanying to clinic? King: T9 violation for unaddressed sexual harassment? Bloss: Negligence for failure to secure housing closer to campus? For illustrative purposes: McNeil: Visiting Austria and hurt her ankle. Program administrator acted as interpreter. Lawsuit that Program Administrator did not inform her that the doctor recommended immediate surgery and she had long term injury Fay: Fell ill in Cuzco, Peru. Taken to medical clinic and left in the care of a Lutheran missionary not affiliated with the college. Three faculty supervisors continued with other students on excursion. Alleged underwent unnecessary emergency appendectomy and both the surgeon and anesthesiologist sexually assaulted her while unconscious. In this case, court ruled exculpatory clause invalid (adhesion K) King: In S Africa, Plaintiff alleged she was forced to leave a 5 week program early because of the actions of three male students. Alleged repeated incidents of harassment and repeated attempts for program director to resolve Bloss: P staying with host family 2.5 miles from main campus. While traveling alone at night, driver pulled off to side of road and raped her at knifepoint. P did receive explicit warnings during orientation about safe ways to travel and disregarded those instructions. Also first time in 18 year history of the program that a rape occurred