April 30, 2008
Law: UCLA snoop is indicted
A former administrative specialist at UCLA Medical Center has been indicted by a federal grand jury for allegedly selling information to the media from medical records of celebrity patients, according to a document unsealed Tuesday.
Lawanda Jackson, 49, was indicted April 9 on a charge of obtaining individually identifiable health information for commercial advantage. Actress Farrah Fawcett and her lawyers allege that Jackson leaked personal information about her battle with cancer to the National Enquirer and other tabloids.Read the story in the LA Times.
Trends: Penn State scores high on "greenness"
Although it can't conquer the powerhouse conferences on the athletic field, the Ivy League crushed its rivals in a green-energy contest sponsored by the U.S. Environmental Protection Agency that concluded this week.
The Ivy League purchased a total of 222 million kilowatt-hours of green electricity, with the University of Pennsylvania alone accounting for 193 million kilowatt-hours, making it the largest academic buyer of green power in the country. The University Athletic Association, led by New York University, earned second place in the EPA's contest, with 147 million kilowatt-hours, or kWh. The Big Ten Conference came in third with 134 million kWh.Read the whole story here.
Trends: Short term study abroad programs grow in popularity
Julie Wootton, News Editor
The number of students studying abroad in short-term programs has increased both for Whitworth and nationally.
short-term programs are becoming more and more popular,” said Sue
Jackson, director of the International Education Center.
Of the 260 students who participated in off-campus study programs during the 2006-07 school year, 217 participated in Jan Term or May Term trips, 40 in semester-long programs and three in year-long programs, according to data from Jackson.Read the rest of this story here.
Event: PRIM&R Annual Conference in November
Public Responsibility in Medicine and Research: Learn more here.
April 29, 2008
Law: A regulatory round-table on new OPT rules
I forgot to mention that if you are experiencing the throes of evaporating budgets, you may request deferred payment when registering for our programs and we will invoice you after July 1st!
The cost is FREE if you register for the morning program: "Developing a Fun and Effective International Student Orientation Program" (See the complete program description at our web site. Cost: $250.). If you want to just join us for the afternoon, the cost is $50.
Space is very limited, so if you are interested it's important to register as soon as possible!
Our web site has not been updated to reflect this addition to our schedule, but just complete the registration form there and fax it in!
If you wish to be removed from this email or our snail mailing list, please let us know.
Law: A faculty speech/1st Amendment case from the AAUP
From: Rachel Levinson,
AAUP Senior Counsel [mailto:firstname.lastname@example.org]
Sent: Tuesday, April 29, 2008 2:38 PM
To: Patrick J Cihon
Subject: Faculty Speech and the First Amendment
Imagine that you are teaching at a public university that not only supports but encourages your participation in institutional governance. You speak up on several matters that you think undermine the faculty role or your students’ experience—and for your trouble, you are denied a raise, saddled with additional work, or even fired. Do the university’s actions violate the First Amendment?
The AAUP and the Thomas Jefferson Center for the Protection of Free Expression recently filed an amicus (“friend of the court”) brief (.pdf) in such a case. The brief, which was filed with the U.S. Court of Appeals for the Ninth Circuit, supports the appeal of Dr. Juan Hong in his First Amendment lawsuit against the administration of the University of California, Irvine. The case could have significant implications for faculty members at all public colleges and universities—and, ironically, could have the strongest negative impact on faculty that are encouraged to participate in university governance.
Dr. Hong, a full professor at UCI, allegedly angered university administrators by opposing certain faculty hiring and promotion decisions and the university’s use of lecturers in place of professors. After Dr. Hong was denied a merit salary increase and given an increased workload, he filed suit, claiming that the university violated his First Amendment right to free speech.
A federal trial judge in California rejected Dr. Hong’s claim. The judge reviewed Garcetti v. Ceballos (.pdf), in which the Supreme Court ruled that the First Amendment did not protect public employees from discharge for statements made “pursuant to their official duties” but declined to decide whether its ruling extended to “speech related to scholarship or teaching.” The judge in Dr. Hong’s case concluded that Dr. Hong’s participation in faculty governance was “pursuant to his official duties,” and that the university’s retaliation therefore did not violate the First Amendment. The court failed to acknowledge, however, that the Garcetti decision explicitly set aside the question of protection for academic speech, and held that “UCI is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
The AAUP’s amicus brief focuses on the unique status granted to academic speech, and its relation to shared governance. The brief notes that faculty speech has been accorded special First Amendment protection by the Supreme Court since Sweezy v. State of New Hampshire , 354 U.S. 234 (1957). The hallmark of such cases, the brief notes, is the recognition that academic freedom merits distinctive First Amendment protection against repressive action from within or outside the campus community. The AAUP brief argues that participation in faculty governance is part and parcel of professors’ First Amendment-protected right of academic freedom to speak without fear of retaliation. The brief also observes that the court failed to distinguish between faculty rights and responsibilities, and argues that the court’s decision will empower universities with strong policies in favor of shared governance to discipline faculty members who annoy administrators through their involvement in university governance.
Law: Eighth Circuit upholds law denying federal aid to drug offenders
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
Students for Sensible Drug *
Policy Foundation, on behalf *
of itself and its members; *
Kraig Selken; Nathan Bush; *
Alex Schwab, on behalf of *
themselves and all other *
similarly situated individuals, *
Appellants, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
Margaret Spellings, Secretary *
of the United States Department *
of Education, in her official *
Protestants for the Common *
Good, and United Church of *
Christ, Justice and Witness *
Amici Curiae. *
Submitted: November 14, 2007
Filed: April 29, 2008
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
Students for Sensible Drug Policy Foundation (“Students”) sued for an
injunction and a declaratory judgment that 20 U.S.C. § 1091(r) is unconstitutional
because it violates the Fifth and Eighth Amendments to the United States Constitution.
The district court1 dismissed the complaint for failure to state a claim upon which
relief could be granted. Students for Sensible Drug Policy Found. v. Spellings, 460
F. Supp. 2d 1093, 1105 (D.S.D. 2006). Students argue the district court erred in
dismissing their Fifth Amendment claim because section 1091(r) violates the Double
Jeopardy Clause. Specifically, they contend the court erred in not considering the full
legislative history of section 1091(r), which shows a purpose to impose a second
criminal punishment. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
20 U.S.C. § 1091(r) provides:
(r) Suspension of eligibility for drug-related offenses
(1) In general
A student who is convicted of any offense under any Federal or State
law involving the possession or sale of a controlled substance for
conduct that occurred during a period of enrollment for which the
student was receiving any grant, loan, or work assistance under this
subchapter and part C of subchapter I of chapter 34 of Title 42 shall not
be eligible to receive any grant, loan, or work assistance under this
subchapter and part C of subchapter I of chapter 34 of Title 42 from the
date of that conviction for the period of time specified in the following
If convicted of an offense involving:
The possession of a
controlled substance: Ineligibility period is:
First offense 1 year
Second offense 2 years
Third offense Indefinite.
The sale of a controlled
substance: Ineligibility period is:
First offense 2 years
Second offense Indefinite.
A student whose eligibility has been suspended under paragraph (1)
may resume eligibility before the end of the ineligibility period
determined under such paragraph if--
(A) the student satisfactorily completes a drug rehabilitation
(i) complies with such criteria as the Secretary shall prescribe
in regulations for purposes of this paragraph; and
(ii) includes two unannounced drug tests; or
(B) the conviction is reversed, set aside, or otherwise rendered
In this subsection, the term “controlled substance” has the meaning
given the term in section 802(6) of Title 21.
This court reviews de novo the grant of a motion to dismiss, “taking all facts
alleged in the complaint as true.” Koehler v. Brody, 483 F.3d 590, 596 (8th Cir.
2007). “A motion to dismiss should be granted if ‘it appears beyond doubt that the
plaintiff can prove no set of facts which would entitle him to relief.’” Id., quoting
Knapp v. Hanson, 183 F.3d 786, 788 (8th Cir. 1999).
A double jeopardy claim is a legal question that this court reviews de novo.
Morse v. Comm’r of Internal Revenue Serv., 419 F.3d 829, 834 (8th Cir. 2005). The
Clause provides: “nor shall any person be subject to the same offence to be twice put
in jeopardy of life or limb.” U.S. Const. amend. V. It protects against the
“imposition of multiple criminal punishments for the same offense, and then only
when such occurs in successive proceedings.” Hudson v. United States, 522 U.S. 93,
99 (1997) (emphasis in original) (internal quotations and citations omitted); Morse,
419 F.3d at 834-35.
Determining whether a particular punishment is criminal or civil is initially a
question of statutory construction. Hudson, 522 U.S. at 99. This court must first ask
“whether the legislature, ‘in establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or the other.’” Id., quoting United
States v. Ward, 448 U.S. 242, 248 (1980). Even if the legislature indicates the intent
to establish a civil penalty, a court must still inquire “whether the statutory scheme
was so punitive either in purpose or effect as to transform what was clearly intended
as a civil remedy into a criminal penalty.” United States v. Lippert, 148 F.3d 974, 976
(8th Cir. 1998), citing Hudson, 522 U.S. at 99. Both inquiries require evaluation of
the statute on its face. Lippert, 148 F.3d at 976. “[O]nly the clearest proof will
suffice to override legislative intent and transform what has been denominated a civil
remedy into a criminal penalty.” Id., quoting Hudson, 522 U.S. at 100.
Regarding the first step, section 1091(r) does not expressly state whether it is
a civil remedy or a criminal penalty. The district court correctly noted the section
speaks in terms of “suspension of eligibility,” not in terms of “penalty” or
“punishment.” Eligibility is determined by an administrative agency, which is “prima
facie evidence that Congress intended to provide for a civil sanction.” Hudson, 522
U.S. at 103; Morse, 419 F.3d at 835. A student has the opportunity to resume
eligibility upon completion of a drug rehabilitation program. And the section was
enacted as part of the Higher Education Amendments of 1998, which were primarily
designed to increase access to college and make it more affordable. 144 Cong. Rec.
H9155 (1998) (floor statements of Rep. Peterson). Nothing on the face of the statute
suggests that Congress intended to create anything other than a civil remedy. Smith
v. Doe, 538 U.S. 84, 93 (2003), citing Kansas v. Hendricks, 521 U.S. 346, 361
Students contend that the primary purpose of section 1091(r) is deterrence,
relying on: (1) its House committee report, which says that section 1091(r) will “serve
as a deterrent to prevent drug offenses,” H.R. Report No. 109-231, at 206 (2005); and
(2) several floor statements (specifically those, over a course of several years, by
Representative Gerald B. H. Solomon who proposed several bills nearly identical to
section 1091(r), although none was enacted). These, though, are not the “clearest
proof” necessary to override legislative intent.
“[A]ll civil penalties have some deterrent effect. . . . If a sanction must be
‘solely’ remedial (i.e., entirely nondeterrent) to avoid implicating the Double Jeopardy
Clause, then no civil penalties are beyond the scope of the Clause.” Hudson, 522 U.S.
at 102; see also Smith, 538 U.S. at 95 (“both criminal and civil sanctions may be
labeled ‘penalties’”). Section 1091(r) serves several non-punitive goals, such as
rehabilitation, school safety, a drug-free society, and ensuring tax dollars are spent on
students who obey the laws. 144 Cong. Rec. H2580 (1998) (floor statements of Rep.
Mark Souder, author of amendment enacting section 1091(r))); 144 Cong. Rec.
H2869 (1998) (floor statements of Rep. Solomon). These goals are “plainly more
remedial than punitive.” Smith, 538 U.S. at 94. “Where, as here, the rational
connection to nonpunitive ends remains as a rationale for enacting this provision, a
court should not reject all those alternatives . . . save that one which might require
invalidation of the statute.” Jensen v. Heckler, 766 F.2d 383, 386 (8th Cir. 1985) (per
curiam) (internal quotation marks omitted).
Students also ask this court to rely on the legislative history of the Anti-Drug
Abuse Act of 1988, which grants state and federal judges discretion to suspend federal
benefits when sentencing an individual convicted of a drug offense. 21 U.S.C. §
862(a)-(c). This history is not directly relevant to the legislative purpose of section
1091(r) because similarity between civil and criminal sanctions does not make both
of them criminal. See Smith, 538 U.S. at 101; Hendricks, 521 U.S. at 364.
Moving to the second step, in determining whether the statutory scheme is so
punitive in purpose or effect, this court looks at several factors:
(1) “[w]hether the sanction involves an affirmative disability or
restraint”; (2) “whether it has historically been regarded as a
punishment”; (3) “whether it comes into play only on a finding of
scienter”; (4) “whether its operation will promote the traditional aims of
punishment – retribution and deterrence”; (5) “whether the behavior to
which it applies is already a crime”; (6) “whether an alternative purpose
to which it may rationally be connected is assignable for it”; and (7)
“whether it appears excessive in relation to the alternative purpose
Hudson, 522 U.S. at 99-100 (emphasis in original), quoting Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963). No one factor is controlling.
Hudson, 522 U.S. at 101.
In terms of these factors, the statutory scheme is not so punitive in purpose or
effect as to transform it into a criminal penalty. First, the sanction does not involve
an affirmative disability or restraint. While students are denied Title IV financial aid
for a specified period, “this is ‘certainly nothing approaching the ‘infamous
punishment’ of imprisonment.’” Hudson, 522 U.S. at 104, quoting Flemming v.
Nestor, 363 U.S. 603, 617 (1960); see also Hendricks, 521 U.S. at 363, 369. Second,
“the denial of Title IV aid does not constitute punishment.” Selective Serv. Sys., v.
Minn. Public Interest Research Group, 468 U.S. 841, 847 n.3 (1984). Students are
not deprived permanently of Title IV benefits. See id. at 853 (“A statute that leaves
open perpetually the possibility of qualifying for aid does not fall within the historical
meaning of forbidden legislative punishment.”). Third, the sanction does not come
into play only on a finding of scienter. The statute says all students who were
convicted for possession or sale of controlled substances are ineligible for aid,
regardless of the student’s state of mind. “The absence of such a requirement here is
evidence that . . . the statute is not intended to be retributive.” Hendricks, 521 U.S.
at 362. Fourth, though the statute will deter other students, this alone “is insufficient
to render a sanction criminal, as deterrence ‘may serve civil as well as criminal
goals.’” Hudson, 522 U.S. at 105, quoting United States v. Ursery, 518 U.S. 267, 292
(1996). Fifth, the sanction applies to behavior that is already a crime in that it requires
a conviction before a student is deemed ineligible. However, this is insufficient to
render the sanctions criminally punitive, especially in the double jeopardy context.
Hudson, 522 U.S. at 105; Hendricks, 521 U.S. at 362 (“Thus, the fact that the Act
may be ‘tied to criminal activity’ is ‘insufficient to render the statut[e] punitive.’”).
Sixth, although section 1091(r) is meant to deter other students from possessing or
selling drugs on campus, it also encourages rehabilitation, school safety, a drug-free
society, and ensuring tax dollars are spent on students who obey the laws. The statute
is rationally related to these alternative purposes. “The Act’s rational connection to
a nonpunitive purpose is a ‘[m]ost significant’ factor in our determination that the
statute’s effects are not punitive.” Smith, 538 U.S. at 102, quoting Ursery, 518 U.S.
at 290. And seventh, the statute is not excessive in relation to these alternative
The judgment of the district court is affirmed.
Event: Fall 2008 diversity workshops available
We are currently taking fall 2008 reservations for bringing this popular workshop directly to
campuses nationwide. Over the past four months, I have conducted
campus workshops at University of Nevada-Las Vegas, Texas Tech University, Virginia Tech University, Florida Atlantic
University, Florida Gulf Coast University and Azusa Pacific University.
The campus workshop has become very popular with institutions for the following reasons:
2-1/2 hour workshop - $5,000
5-hour workshop - $7,500
If you decide to move forward in reserving a fall 2008 campus workshop, please contact me directly for scheduling availability (campus workshops begin in mid-August 2008).
Minority Faculty Applicant Database
The Minority Faculty Applicant Database (MFAD) has become so popular, we have created its own website.
Introducing - www.minorityfacultyapplicantdatabase.com. Our new website has our Distribution Directory, Faculty Employment Postings and Advertisement Subscription Sheet.
We are excited about our new, successful method of locating, and recruiting qualified minority candidates to academic institutions across the country. MFAD adds 40-50 minority registrants per week who are seeking faculty employment opportunities. Over 3,690 minority registrants have submitted their information since its creation. Currently MFAD has 62 academic institutions under its 6-month or 1-year Advertising Subscriptions.
Through years of analyzing other minority employment postings, we have found an effective niche - sending each faculty employment posting directly to those who register. This method is guaranteed to reach those specifically interested in positions nationwide.
Cost (unlimited postings per academic institution)
6-months = $500
1-year = $1,000
Should you need additional information, please do not hesitate to contact me directly by e-mail at email@example.com or by calling 661-943-4239.
Dr. Sonel Y. Shropshire
The Academic Network, Inc.
2010 West Avenue K # 646
Lancaster, CA 93536-5229
Law: DHS proposes biometrics at ports... comment period is now
On April 24, 2008, the Department of Homeland Security (DHS) posted a proposed rule to establish an exit program at all air and sea ports of departure. The proposed rule would require aliens who are subject to United States Visitor and Immigrant Status Indicator Technology Program (US–VISIT) biometric requirements upon entering the United States to provide biometric information to commercial air and vessel carriers before departing from the United States at air and sea ports of entry. Public comments on this proposed rule are due no later than June 23, 2008.More at the NAFSA website.
Law: Random selection for H-1B petitions
Random Selection Process on H-1B Petitions
On April 14,
2008 the U.S. Citizenship and Immigration Services (USCIS)
conducted a random selection process on H-1B petitions for
fiscal year 2009. The selections were made on the petitions
that qualified for the 20,000 master’s or higher degree
exemption and on the remaining advanced degree petitions
totaling the 65,000 cap.
Roughly 163,000 petitions were received on the first five days of the eligible filing period and were immediately labeled with numerical identifiers. The appropriate service centers have been notified which petitions have been randomly selected so that the service center can begin the adjudication process.
The USCIS has estimated that those with petitions selected for processing should receive a receipt notice dated no later than June 2, 2008. The unselected petitions will be returned to the petitioner along with the filing fees. It is expected that the overall adjudication process will take about eight to ten weeks. The 15-day premium processing period began April 14 for petitions that have been chosen in the random selection and requested Premium Processing Service.
Some H-1B petitions have been put on a waiting list, in case petitions that were chosen in the lottery are withdrawn or denied and a cap number becomes available. The USCIS will notify the waitlisted petitioners informing them of their status.