What is the nurse educator’s responsibility in assisting the student who is is struggling academically or clinically?
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 InteractionsThe 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’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, because 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-on 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, possibly jeopardizing patient care, placing faculty peers in a difficult situation, and potentially being subject to a claim of educational malpractice. Nursing faculty and even the university are responsible for preparing safe and competent practitioners. When the faculty does not fulfill their responsibilities, they can be held liable for educational malpractice, because they are breaching their duty as an educator. Student deficiencies may eventually be identified and dealt with by subsequent 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 for 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. Disciplinary actions brought against the student need to include providing the student with a written copy of the accused violation. 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. Procedural due process should include an impartial decision maker, notice of the charges and evidence against the student, an opportunity to appear before the decision maker, an opportunity to suggest witnesses, protection of the imposition of sanctions against the witnesses, and permitting the student to voluntarily accept discipline or the ruling of the decision maker (A v. C. College, 1994). 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 committee usually decides the outcome of the charges. Courts may be more likely to become involved in disciplinary actions because 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 one hopes she has done that at the earlier conference) and provide an opportunity for Jane to respond to the accusations. The process must provide an opportunity 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, because 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 traditionally have 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, 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 who may not be provided with due process protections, particularly in private institutions. 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 State Board of Education, 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. 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.
The Student Appeal Process
Before seeking the assistance of the court system, students must first use all available recourse within the institution. A well-established principle of educational law is that the courts have generally relied on academic institutions to deal with grade disputes and have intervened only when there is evidence of the violation of student rights. Institutions of higher learning have established policies for hearing student grievances and appeals. The purpose of these guidelines is to establish common procedures to ensure that students are provided due process and that faculty rights are supported. A sample appeal process that illustrates the typical steps students should initiate before filing a formal appeal is included as Table 3.2. Faculty and nursing program administrators should familiarize themselves with this “chain of command” to ensure that students are afforded due process while faculty rights are also respected.
Table 3.2
Appeal Process Sample
Steps in the Appeal Process Commentsa
Step 1: Instructor Conference Many issues can be resolved informally between the instructor and the student, and this should be the level at which discussions are initiated. The student should make an appointment to meet with the instructor to discuss the issue and present objective evidence supportive of the student’s position. The instructor is responsible for summarizing the outcomes of the meeting, providing the student with a copy of the summary, and placing a copy of the summary in the student’s file.
Step 2: Academic Advisor Conference Some nursing programs use academic advisors as part of the appeals process; other nursing programs do not. The academic advisor can serve as an impartial third party to listen to the grievance and as facilitator to resolve the matter. A written summary of the conference should be created, a copy given to the student, and a copy placed in the student’s file.
Step 3: Program Director Conference The next level is often the program director but may be a different position dependent on how the nursing program is structured. The director can view the issue from a broad perspective. The student again has the opportunity to discuss the matter and bring supporting evidence. A written summary should be created, a copy given to the student, and a copy placed in the student’s file.
Step 4: Dean of Nursing Conference Some nursing programs may only have a program director, in which case the next step may be the formal filing of a grievance and meeting with the grievance committee. If a dean of nursing is present, this individual serves as another party to facilitate resolution of the issue. A written summary should be created, a copy given to the student, and a copy placed in the student’s file. The dean of nursing would follow up with the faculty involved to the extent appropriate.
Step 5: Appeal Committee An appeal committee may review the matter based solely on written materials presented or after a hearing in which the student presents the issue. The student should always have the opportunity to prepare for the appeal committee and present evidence for their position. The written outcome of the appeal committee will be given to the student and placed in the student’s file.
Step 5: Chief Academic Officer Conference (Academic Vice President or Provost) The institution’s chief academic officer is typically the final step in the grievance process. The chief academic officer reviews all of the materials and makes a final determination of the matter.
a Note: Each step of the appeals process should provide sufficient time for the student to prepare adequately for the next level of appeal, yet assure that the matter is dealt with in a time-effective manner. As educational institutions vary in organizational structure, so will the actual steps. For example, not all nursing programs have a dean of nursing.
Institutional and program policies related to student appeals and grievance procedures should be made available in writing to students and faculty. Faculty are usually given this information in the faculty handbook on orientation to the institution and should refer to them periodically as changes are made.
Likewise, students should be informed that a formal grievance process policy exists and that it is their responsibility to initiate the procedure. It is recommended that programs distribute this information to students when they are first admitted to the institution and document that students have received such notification. Students may choose not to initiate the grievance procedure that is their right, but they should always be aware of the option of doing so. Information about the appeal process should be reviewed with an individual student if the situation warrants.
When a grievance occurs and the appeal process is implemented, there are two possible outcomes. The appeals board may review the information provided and find that there are insufficient grounds for the student’s charge and that the assigned grade or faculty action should stand. The other option is that a recommendation for corrective action may be made based on a review of evidence that indicates that the student’s charges have merit. This may mean a change of grade or an opportunity for further evaluation. Implementation of the recommendations may vary depending on the specific charges and circumstances. If, at the conclusion of the institutional appeal process, the student is not satisfied with the outcome, the student has the right to pursue further recourse in the court system.
Faculty Role in the Appeal Process
Being involved in the appeal process can be a stressful experience for both the faculty member and the student. When a student indicates dissatisfaction with an assigned grade or evaluation and is considering an appeal, the faculty member should give consideration to reevaluation. If the faculty member finds that the student’s evidence is legitimate and that the student truly deserves a higher grade, then the grade should be changed. If the faculty member believes no changes are justified after reviewing the situation and finding that all procedures and standards have been applied consistently and justly, then the faculty member should maintain the assigned grade. However, a faculty member should not act in haste or out of fear in reaction to the threat of a grievance procedure. Changing a grade without justification sets a dangerous precedent and should be avoided. Clear, consistent use of standards for grading that are made known to students will help effectively support grades that are assigned. Planning before the implementation of a course assignment or activity and providing clearly established grading criteria may help decrease student misunderstanding.
Academic performance in the clinical and classroom settings
One major responsibility of nursing faculty is the evaluation of student academic performance. In many circumstances faculty are charged with evaluating students in both classroom (didactic) and clinical settings. Student evaluation is an expectation of faculty at all levels and requires careful consideration for many reasons.
The outcome of evaluation has a major effect on students, and faculty must always be aware of this. Student assessment is critical to evaluating student learning and determining competence to practice (Oermann & Gaberson, 2017). Faculty may have limited preparation in how to evaluate students within the classroom or the clinical setting. The outcome of an evaluation usually means that students progress in the program, but an unsatisfactory evaluation means that students may face having to repeat a course, a delay in their education, or removal from the program. These outcomes have financial, emotional, and other costs for students. In addition, faculty may also experience negative consequences, such as emotional distress, pressure from administration to maintain numbers, and a sense of personal failure when it is necessary to assign a failing grade. In the context of this stressful situation for all involved, faculty must be aware of the legal concepts important to the evaluation process.
Academic Failure in the Clinical Setting
Faculty who teach clinical nursing courses are responsible for guiding students in the development of professional nursing judgments, skills, and values. Faculty must ensure that the learning experiences chosen provide the student with the opportunity to develop those skills to ensure that they will become safe, competent practitioners. Applying a theoretical knowledge base, developing psychomotor skills, using appropriate communication techniques with patients and staff, exhibiting decision-making and organizational skills, and behaving in a professional manner are examples of the types of competencies that nursing students are expected to achieve through their clinical experiences. Faculty are also expected to make judgments and decisions about the ability of students to satisfactorily meet the objectives of the clinical experience. When students are unable to satisfactorily meet the objectives of the clinical experience, faculty have the legal and ethical responsibility to deny academic progression.
Legal and ethical grounds exist for dismissal of a student who is clinically deficient. Nurse practice acts exist in all states to regulate nursing practice and nursing education within a given state. Successful graduation from a nursing program should indicate that the student has achieved the minimum competencies required for safe practice.
When providing clinical care, nursing students will be held accountable for professionally negligent actions and are required to come prepared to clinical learning situations and to ask for help when needed. Although nursing practice is regulated by state law, which results in variations in practice standards between states, the prevailing view is that students are practicing on their own “fictitious license” and not the license of their instructor. As a result, students will be held to the same standards of practice as a reasonable, prudent nurse with the same education and experience. Patients should expect that the care provided will be safe, quality care at the level that is needed. In addition, students and faculty are expected to follow professional standards of practice and codes of ethics that have been developed to guide the profession, even though the students’ educational experiences are not completed.
When engaged in clinical learning experiences, the nursing student is under the supervision of the clinical faculty with input from agency staff. The nursing staff in the facility have ultimate control over patient care that is delivered, so there must be constant and appropriate communication between staff, faculty, and students. The clinical agency contract that allows the school to use the facility for learning experiences may also contain a clause stipulating that the school of nursing will provide supervision of students. It is also common for the agency to retain the right to request removal of students and faculty if the level of performance does not meet the standard of care acceptable to the institution and could result in the loss of the clinical agency as a site for future clinical experiences. Faculty must accept responsibility for ensuring that students practice with an acceptable level of competence. Each member of the health care team is liable for his or her own potential negligence related to patient care. If the student does not provide care according to applicable standards, the student is liable for any resulting damage. If the nursing faculty does not adequately assign, monitor, and supervise the student, the nursing faculty is liable for resulting damage. And if the clinical staff, who retain ultimate responsibility for the patient’s care, neglect their duties in overseeing the care, they are liable for resulting damage.
Clinical faculty have several responsibilities related to the instruction of students. First, clinical faculty must set clear expectations for student performance and communicate these expectations to students before the onset of any learning experience. These expectations must be reasonable for students to meet and must be consistently and equitably applied to all of the faculty member’s assigned students. Second, faculty must determine the amount of supervision to provide to students. When determining the appropriate level of supervision, faculty should consider the severity and stability of the assigned patient’s condition, the types of treatments required by the patient, and the student’s competency and ability to adapt to changing situations in the clinical setting. Another responsibility of clinical faculty is to judge the ability of the student to transfer classroom knowledge to the clinical setting.
Application of theory to nursing care is an important component of safe nursing practice, and faculty must engage in data collection to determine the level of student performance in this area. Faculty may collect data in multiple ways. For example, before providing care, students may be asked to develop written care plans and provide the rationale for their proposed nursing interventions. Faculty may also verbally ask students to explain the significance of patient assessment data they have gathered, or students may be asked to keep a weekly journal that provides insight into their clinical decision making. Chapters 18 and 26 provide further discussion of clinical teaching and evaluation. Whatever data collection methods are used by faculty to assess student performance must be consistently applied to all students. Because faculty retain the legal liability for appropriate student assignments and student monitoring to assure applicable standards of care are being followed, the faculty has the responsibility to remove students from providing clinical nursing care when the student is unsafe.
Fearing legal action, faculty may hesitate to fail a student who performs poorly in the clinical setting. However, federal and state courts have frequently upheld the responsibility and right of faculty to evaluate students’ clinical performance and dismiss students who have failed to meet the criteria for a satisfactory performance. The courts have long indicated that faculty, as experts in their profession, are best qualified to make decisions about the academic performance of students (Christensen, 2014). When teaching a clinical course, faculty must clearly establish and communicate the course and clinical objectives; they must document student performance and effectively communicate with students on an ongoing basis about their progress in the clinical area. These measures are discussed in greater depth in Chapter 18. Key to the success of any of these measures is that there has been clear communication of expectations to students.
As part of this communication, faculty should clearly identify at the beginning of the course, along with the clinical objectives, the level of clinical competence that students will be expected to achieve. These requirements should be stated in the course syllabus along with information about how the clinical grade will be determined for the course. The clinical syllabus should clearly identify all of the evaluation measures that will be used in determining the clinical grade. Chapter 26 provides more information about the process of clinical evaluation. Students must be informed about how data will be obtained and whether the clinical evaluation will be formative, summative, or a combination. Students must receive continuing input through a formative evaluation process, periodically receiving information about progress and suggestions for improvement. Students must have time to demonstrate the course competency requirements during the clinical experiences and cannot be required to master those competencies until the end of the course. The consequences of not meeting objectives should also be clearly communicated to students.
Written records of all clinical experiences and student–faculty conferences should be kept for each student during the course. Recording student observations during clinical learning experiences is very effective in assisting the faculty to recall specific objective observations (Gaberson et al., 2015).
Written records of a student’s learning experiences document that the student has been provided with adequate opportunity to meet the clinical objectives. If opportunities to meet clinical objectives have not been provided, students cannot be evaluated or failed on unmet objectives.
Anecdotal records should be objectively written, describe both positive and negative aspects of a student’s performance, and address the objectives of the course. Faculty should avoid commenting on the personality of the student but instead should reflect on what the student has or has not accomplished in relation to the course objectives. Notes of the student’s daily and weekly assignments should be based on fact and should be nonjudgmental. Documenting both aspects of performance indicates that the student’s total performance was taken into account when the final clinical grade was assigned.
Throughout the clinical experience, faculty should provide consistent, constructive feedback to students. Identifying positive aspects of a student’s clinical performance and areas needing improvement will help that student develop self-esteem and confidence as a practitioner. Feedback is best conveyed in privacy, away from peers, staff, and patients, thus maintaining student confidentiality. Persistent clinical deficiencies should be addressed in conferences with the student, ideally away from the clinical setting. Written records of student–faculty conferences are used to document areas of faculty or student concern that have been discussed, along with the measures that are being taken to correct these deficiencies. Information about the progress the student makes toward correcting clinical deficiencies and any lack of progress should be included in follow-up notes. Both the faculty member and the student should sign these written records.
Communicating effectively with a student who is not performing satisfactorily can be difficult. When feedback is given to a student about deficiencies in performance, it is essential for the faculty member to convey to the student a sense of genuine concern about helping the student improve his or her performance and to convey the faculty member’s responsibility for ensuring patient safety in the clinical setting. Providing feedback during clinical learning experiences should be continuous and include suggestions for students to improve their performance (Oermann & Gaberson, 2017). Students should be allowed the opportunity to clarify and respond to the feedback given by the faculty member. Sometimes an objective third party, such as a department chairperson or course coordinator, can assist by providing an objective perspective of the circumstances and serving as an impartial witness to what was said by both the faculty member and the student.
When notifying a student that course requirements are not being met and failure of the course may result, the faculty member must follow the institutional guidelines that have been established for such situations. Informing a student of unsatisfactory clinical performance can produce a stressful situation for the student, but it also provides the due process that is the student’s right in cases of academic deficiency. It enables the student to understand that his or her performance is unsatisfactory and provides the student with the opportunity to correct deficiencies. It is equally important that the faculty member communicate information about the student’s performance to other faculty who are administratively responsible for the course.
Assisting the Failing Student in the Clinical Setting
How do clinical faculty determine when a student’s clinical performance is unsatisfactory and warrants failure of the course? How many opportunities should the student be given to learn before being evaluated? These are questions that have been debated in nursing education for decades without resolution. Faculty are responsible for evaluating the cognitive, psychomotor, and affective behaviors of students during clinical learning experiences. Even with reliable and valid evaluation tools, it can be difficult to objectively evaluate the behavior of students, especially in the affective domain.
Clinical evaluation has many inherent challenges for the nurse educator. Clinical evaluation may be subjective, evaluation criteria may be misinterpreted by faculty or students, and clinical nursing practice is very complex (Krautscheid, Moceri, Stragnell, Manthey, & Neal, 2014).
Faculty in the clinical setting need to implement clear clinical evaluation measures and provide the student with frequent feedback as to their progress in meeting the clinical expectations. However, once having determined that a student’s performance is unsatisfactory and that failure of the course is likely to occur, faculty must implement actions to protect the student’s right to due process and assist the student through what will undoubtedly be a stressful experience.
Faculty may use several guidelines when working with students whose clinical performance is unsatisfactory. For example, as previously mentioned, unsatisfactory clinical behaviors should be identified and discussed with the student as early as possible. Documentation should be maintained of the student’s performance and all conferences with the student.
Working in collaboration with the student, faculty should develop a plan or “learning contract” in which the needed areas of improvement are identified along with appropriate measures to ensure the improvement of performance. The student should be made aware that isolated instances of good or inadequate performance will not lead to a passing or failing grade. Instead, it is essential that the student strive to develop a consistency of behavior that portrays continuing improvement in performance and the delivery of safe patient care. The student should also understand that successful completion of any remedial work identified in the plan may not be sufficient to ensure a passing grade for the course; satisfactory completion of the course objectives will be required. After the plan has been detailed in a document, both the student and faculty should sign and date it. The student should be given a copy of the plan for his or her own records and reference.
Frequent feedback sessions are essential during this time, as the student attempts to make an improvement in performance. The number of sessions depends on the situation, but it is often helpful to agree to meet on a regular basis, for example, weekly. The faculty member should maintain objective and factual records of all sessions held with the student, including a description of strategies for intervention that were developed. Student self-appraisal should be a part of the process.
The student should also understand that during this period of evaluation, increased supervision and observation by faculty may be necessary to continue to ensure that patient safety is maintained. The student may report feeling he or she has been treated unfairly or harassed and indicate that the increased faculty supervision is creating a stressful situation. It may be helpful at this time to refer the student to a counselor or other qualified individual for assistance with stress management. Role confusion can occur when the faculty acts in the capacity of caregiver or counselor to the student rather than maintaining the educator role. It is imperative that the nurse educator only act within the boundaries of his or her position and role. This also extends to situations when the faculty tries to assume the role of health care provider to the student, when there is no legitimate nurse–patient relationship between the faculty and the student.
At times, a clinical instructor may experience a sense of concern about a student’s performance but have difficulty clearly identifying the unsatisfactory behaviors. The instructor may wish to seek input from another faculty member about the student’s performance. Faculty have the right, but no legal responsibility, to obtain an objective evaluation by another faculty member. If this is done, the faculty member must make the student aware of the purpose of this observation and that the results of the objective evaluation may affect the grade awarded.
If the student continues to provide unsafe patient care despite the interventions to improve performance, faculty can withdraw the student from the course before the end of the semester. Students who might qualify for removal from the clinical setting are those who demonstrate a consistent lack of understanding of their limitations, those who clearly and repeatedly cannot anticipate the consequences of their actions or lack of action, and those who consistently fail to maintain appropriate communication with faculty and staff about patient care. If a student is dishonest with faculty and staff about the care provided to a patient, serious legal and ethical implications occur.
In all of these cases, patient care may be jeopardized and unsafe situations may be created for patients. Clinical faculty can refuse to allow a student to continue to provide care in the clinical setting, but if the student’s performance is safe, the student must be allowed to complete the clinical requirements of the course, even if the student is not meeting course objectives. Students are not required to achieve course objectives until the end of the course.
Following the mentioned procedures helps ensure that a student’s right to due process has been upheld. Maintaining effective communication with the student throughout the experience may be difficult but is essential to achieving a satisfactory resolution to the situation for both faculty and student. When students perceive that they have been treated fairly and objectively, most will accept that they were unable to satisfactorily meet the objectives required of the course. Faculty should avoid excessive self-blame for the clinical failure of a student.
Academic Failure in the Classroom Setting
Nursing program curricula are by necessity academically rigorous. Academic classroom failure, with a subsequent attrition from the nursing program, is not uncommon, and retention of nursing students is a familiar concern of nurse educators. However, faculty have a responsibility to uphold academic standards and must at times assign a failing grade in a course.
The reasons for academic failure in the classroom are numerous. First, students may initially underestimate the amount of time that they will need to devote to course study to be successful in the pursuit of a nursing degree. Students may be unprepared and lack the study- and time-management skills necessary to organize their schedules and study time appropriately. Students can quickly become overwhelmed with the academic demand of a nursing program, and the resulting stress serves to further increase anxiety and the inability to deal with course requirements.
Second, many of today’s nursing students are attempting to fulfill numerous roles, simultaneously juggling the responsibilities and demands of work, family, and school. Role overload becomes excessive, and the students’ grades are adversely affected. Students are often forced to make difficult decisions and may be ill equipped to identify appropriate priorities when addressing these issues.
Third, some students have difficulty with the level of cognitive ability required in nursing courses. Although adept at memorizing facts and information, they are not able to apply the concepts and develop the appropriate decision-making abilities. This is usually demonstrated by their inability to perform well on tests that demand application, analysis, and synthesis levels of cognition. Students who have never before been required to think on these levels may become frustrated when they spend much time memorizing information but still do not perform well on tests.
Some students may have learning disabilities that affect their ability to read with comprehension, successfully take tests, memorize information, or maintain concentration. Some students have satisfactory clinical performance but are unable to perform well in the classroom setting. See Chapter 4 for further discussion of students with learning disabilities. Students for whom English is a second language may also experience these difficulties.
Faculty have an ethical responsibility to identify students who are considered to be at high risk for academic failure in the classroom. The same examples of high-risk characteristics Donovan identified in 1989 are still pertinent today and include low grade point average, low standardized test scores, decreased critical thinking skills, and attendance at several universities without attaining a degree. Additional factors that can cause students to be at a higher risk for academic failure include having poorer reading and comprehension skills, having English as an additional language, being economically disadvantaged, and being an older student (Bastable, 2014). When students who have these characteristics are accepted into a nursing program, academic support services must be provided to increase their chances of success.
Faculty also have the responsibility for developing and providing academic support services that increase students’ chances for success and thus increase student retention in the nursing program. There are many services that may be available to assist students academically, such as tutoring programs, individual course study sessions, study skills workshops, faculty–student mentoring programs, test-taking support, peer study sessions, and time and stress management training. Faculty should be aware of resources within other departments in the institution that can offer valuable assistance to students in need. They should also encourage activities that provide a support system for students, such as participation in student clubs and organizations. Peer mentoring can also be an effective educational strategy that benefits both the student serving as the mentor and the student being mentored (Brody et al., 2016; Walker & Verklan, 2016). The use of peer mentoring must include clearly established guidelines and mentor expectations (Oermann, 2015). Developing and providing support services for students with academic difficulties helps ensure that students receive the assistance they need at the earliest possible intervention point.
Assisting the Failing Student in the Classroom Setting
When designing intervention programs that will assist students to be academically successful in a nursing program, faculty must consider the academic experience from the perspective of the student, because this may have major implications for student retention and success. Faculty should obtain feedback from students in the program about their areas of concern, both academic and nonacademic. For example, if students believe that large class size is interfering with their ability to learn, strategies that provide students with access to faculty in small groups could be implemented. Student focus groups can provide much feedback, and faculty can use this information to develop interventions.
Faculty also need input about what programs or interventions are working (e.g., tutoring services, orientation programs, peer-to-peer study assistance groups) so that these can be continued or eliminated according to their success. Faculty need to know what concerns students have that can be addressed with appropriate resources. Using this information, faculty would be able to develop a retention-intervention program designed to maximize students’ positive experiences and enhance academic success.
More specifically, faculty can implement several proactive strategies that support students’ academic efforts in the classroom. First, faculty should remain aware of the changing student population and students’ different learning styles. Nurse educators need to develop innovative, flexible programs designed to support the academic needs of the increasing numbers of nontraditional adult learners, graduate students, and culturally diverse students.
Flexible class scheduling, the use of technology to provide learning at convenient times for students, campus child care, recognition of students’ life experiences, and support for students with English as a second language can all help students achieve their educational goals. The learning expectations and strategies of today’s college students are likely to be different from those of students of the past. Much literature has been published that addresses the varying learning styles of the current generation, and information gained from those studies should be used to provide meaningful learning experiences for students.
Students who are successfully integrated academically and socially into the learning environment will more likely be retained in the system. Institutions must realize that students bring diverse needs to the educational process. The faculty adviser has key role in helping students successfully adjust to their academic responsibilities. Faculty need to be informed about academic policies that affect student advisement so that they are able to provide accurate, timely information.
A typical role of the academic nurse educator often involves serving as an academic advisor for the nursing students. Faculty who understand the particular challenges of their students and the particular demands of their nursing program can promote student retention and educational success. The NLN (2016) identifies the importance of creating academic environments where diversity can flourish. Nursing associations or organizations can be a source of encouragement for students and can serve as a vehicle for socializing students into the nursing profession.
Individually, faculty members can take several steps to assist students who are doing poorly in the classroom. When a student demonstrates evidence of a lack of understanding of content of the course, such as failing a test or not completing an assignment properly, the faculty member should meet with the student to identify the student’s perception of the problem. Students are often able to recognize the problem themselves, such as not enough time spent in preparation, lack of understanding of the material, or personal problems. Each of these reasons for poor performance requires the use of different intervention strategies, and the student should be involved in determining what actions are to be taken. Tests should be reviewed to assess the areas of difficulty and to determine whether the problem is potentially related to, for example, lack of knowledge about content, reading difficulties, anxiety associated with test taking, poor study skills, or personal difficulties. Once the potential causes have been identified, intervention strategies can be designed and implemented to help correct the situation.
Faculty must realize that it is the student’s responsibility to learn and to use the resources available to improve academic performance. Students must take responsibility for carrying out the plan of action developed in conjunction with the faculty member. Faculty cannot assume responsibility for ensuring that all students are successful in the course, but they must make certain that students are active participants in identifying concerns, developing strategies to address deficiencies, and improving performance. Faculty should always be willing to listen to student concerns and make referrals to available program resources when appropriate.
If, despite various efforts, a student cannot satisfactorily meet the course requirements, faculty have no alternative but to assign a failing grade. At this point, the student will require guidance and support as the available options are reviewed. If this is the first nursing course that the student has failed, it is commonly program policy to allow one retake of the course. If this is the second nursing course failure for the student, the student may be dismissed from the program. The student should receive appropriate academic advice as he or she plans future educational goals.
Ethical issues related to academic performance
Many ethical principles that influence student–faculty relationships and interactions are the same ones that guide interactions between nurses and patients. The relationship should be characterized by mutual respect and open communication. Faculty have a responsibility to conduct themselves in a manner that is exemplary, fair, nonjudgmental, and just and should serve as role models for students in demonstrating honest academic conduct. It is apparent, though, that there is the potential for student–faculty conflict to develop in these interactions. Faculty should consider the ethical implications that exist in relationships developed with students. This section addresses ethical issues that can develop in student–faculty relationships, including academic dishonesty and the nature of interactions occurring between students and faculty. Suggestions are provided for avoiding the development of unethical situations.
Academic Dishonesty
A student copies from another student during a test or uses “crib” notes; another student agrees to help an academically weaker student by providing answers to a test. Lacking the time it takes to write a term paper, a student turns in a paper written by another student, and yet another student plagiarizes portions of a term paper, taking the chance that the professor will not detect the omission of appropriate reference citations. During a clinical experience, a student forgets to administer a medication on time. Fearing the consequences of admitting the error, the student instead documents it as given. These are all examples of academic dishonesty or cheating, representing one of the most difficult situations faculty have to deal with in their interactions with students.
Unfortunately, such incidents are not uncommon, and as technology has developed and students have become more proficient, the methods of cheating have become more sophisticated, complicated, and complex (Oermann & Gaberson, 2017). As computer technology has become commonplace, students have used more sophisticated high-tech methods of cheating, such as the use of smart phones, cameras, text messages, and inappropriate computer use. Additional cheating methods may include use of tattoos, labels on drinking containers, and papers purchased online. Numerous reports detail alarming statistics that demonstrate an increasing occurrence and acceptance of cheating in schools at every level. Krueger (2014) completed a study of nursing students’ engagement in academic dishonesty and identified that more than half of the study participants reported cheating in the classroom and clinical setting. Nursing faculty may be particularly concerned about academic dishonesty because a link between unethical classroom behavior and unethical clinical behavior exists.
Oermann and Gaberson (2017) noted that both low-technology cheating and more sophisticated use of technology in cheating are widely believed to be common on US college campuses. Nursing faculty often are hesitant to deal with student cheating because of fear of consequences to themselves. After confronting students regarding cheating, faculty may encounter altered relationships with students. Faculty may also fear for their own safety from students who become confrontational and make threats. In spite of such deterrents to confronting cheating, most faculty are committed to maintaining integrity within nursing education, although they do not always have the knowledge of practices that can assist in deterring cheating (Stonecypher & Willson, 2014).
Many factors may influence a student’s decision to cheat. Several authorities note that an alarming number of students do not consider their behavior to be unethical or cheating but see it as acceptable and common. Literature has addressed the concept of academic entitlement, whereby the student feels entitled to the degree because they have paid their tuition, rather than feeling entitled to the opportunity to learn (Karpen, 2014). Dishonesty in the classroom setting is a concern for nursing faculty because of the potential for the student to also demonstrate dishonest behavior within the clinical setting.
Numerous strategies and practices have been identified to deter cheating in nursing education (Stonecypher & Willson, 2014). An initial strategy to address academic honesty should be a careful review of the faculty’s own behaviors. For example, do faculty cite sources on materials presented to students in class? Are student contributions to research and publications appropriately acknowledged? Are faculty expectations realistic in terms of time requirements for students? Is there discussion about the importance of values and values development in students, or do these discussions occur only when a crisis situation has occurred? These authors point to the importance of a learning environment that integrates ethics into the entire curriculum and the use of learning strategies that work to develop values and behaviors in students that have lasting consequences.Nursing faculty must role model a high level of integrity and create high-integrity classrooms to promote ethical practices in students (Eby et al., 2013).
The Tri-Council for Nursing recently issued a proclamation focused on nursing civility that identified the need to promote health and civil work environments (2017). Civility toward others must extend into the academic nurse educator role. According to Dr. Cynthia Clark, maintaining civility in student–faculty interactions is another important action that faculty can take to serve as positive role models and promote effective leadership behaviors for students (Nickitas, 2014). Bullying occurs at all levels of nursing, including nursing education and nursing practice (Matt, 2012). Faculty are in the power position with respect to the student because faculty hold the power over a student’s grade and program progression. Faculty may not think that their actions would be considered bullying, but when the imbalance of power in the teacher–student relationship is considered, actions the faculty perceive as innocent or even helpful may in fact fit the definition of student bullying. It is imperative that faculty not allow an environment of incivility or bullying to occur within the nursing program.
Faculty can take a number of actions to deter cheating in their courses. One of the most common forms of academic dishonesty is cheating on classroom tests. This may be done by copying from another student’s test, with or without the cooperation of the other student, concealing and bringing potential answers to the test into the classroom, or obtaining test questions from students who were previously enrolled in the course. Developing alternate test forms that can be used in subsequent semesters can help decrease the likelihood of questions being shared between classes of students. Alternative test forms can also be used among students in the same class, thus decreasing the chance that students can cheat by looking at the test of the student sitting next to them. Requiring students to leave books and other personal items at the front of the classroom or under their desks and rearranging the seating can also make it more difficult for students to cheat. Directing students to look only at their own tests can serve to remind students that their behavior is being observed and that they are responsible for not conveying the appearance of cheating.
Another common method of cheating is plagiarism of written work, through either the use of papers written by other students or the inappropriate citation of references. Students may be unclear about what constitutes plagiarism; therefore faculty should consider clarifying this at the beginning of the course, including how and when citing is to be done and what consequences will take place if plagiarism occurs. The proactive approach has been shown to be more successful, especially when tied to the development of an environment of academic honesty, often linked to an honor code or honor system. This may reduce the number of “I did not know that was wrong” excuses from students. Requesting that copies of the references cited in written work be turned in with the assignment can facilitate faculty review of the materials and reduce the likelihood that students will deliberately plagiarize. Keeping on file copies of past student papers can also decrease the likelihood that students will be able to represent a previous student’s work as their own.
Sometimes students are pressured into helping another student cheat on coursework, either through a misguided sense of feeling sorry for and wanting to “help” the student or sometimes through fear. It can be helpful to periodically review the institution’s policy on academic dishonesty with students in the class, especially if the faculty member suspects there may be a problem. Many students do not realize that institutional policies commonly state explicitly that a student participating in and enabling another student to cheat is also guilty of academic dishonesty and may be disciplined as well. In addition, most institutions have policies that provide guidance for students who feel that they are being verbally and otherwise harassed by another student.
A wide variety of practices are described in the literature to deter cheating (Oermann & Gaberson, 2017; Stonecypher & Willson, 2014). Morgan and Hart (2013) conducted a quasi-experimental study to investigate the effectiveness of an academic integrity intervention in an online RN to BSN program. They found that the interventions of faculty-initiated discussions on academic integrity combined with assignments focused on policies, honor codes, and so on fostered a culture of increased academic integrity (Morgan & Hart, 2013). Academic honor codes can be used as a proactive stance to discourage dishonesty and to foster the development of a professional value system within an institution. An academic honor code should define what activities constitute academic misconduct, what disciplinary action could result if the student engages in such activity, and the student grievance and appeal procedure. Colleges with honor codes have been reported to have fewer incidences of academic dishonesty (Krueger, 2014).
It is also helpful if written statements on course syllabi are used to remind students of the institution’s policy on academic dishonesty and the academic code of honor, if one exists. The consequences of cheating and violating the honor code should also be clearly delineated in course syllabi. If cheating has occurred, does the student get an F for the assignment or an F for the course? Or are other options a possibility? This information can be included in the evaluation section of the syllabus and lets students know that any incidents of cheating will be taken seriously by the faculty member. It is important that these outcomes be guided by school policy and procedure; all course policies must be congruent with those of the broader school guidelines.
If a faculty member has evidence that a student has engaged in some form of academic dishonesty, it becomes necessary for him or her to confront the student about the incident.
Multiple steps should be taken by the faculty when dealing with instances of cheating. The faculty should ensure privacy with the student when initiating a discussion about the suspected cheating. This discussion often includes a third person, such as another faculty member or the department chairperson. The faculty should clearly and objectively state the observed behavior and reference it to the expected behavior. Potential consequences for the student’s actions should be reviewed. The student should be informed of institutional policies and the importance of adhering to professional standards of conduct. The conference should be documented by the faculty member and the student should receive a copy of the documentation. As mentioned previously in the section regarding disciplinary action and due process, the student’s right to due process should be ensured before any action is taken.
Student–Faculty Relationships
As discussed earlier in this chapter, the nature of the relationships that students develop with faculty in the classroom and clinical setting can have a profound influence on the quality of the students’ education experiences. The relationship of the student to faculty in nursing may be closer than in other disciplines because of the increased amount of individual contact that occurs between students and faculty. Novice faculty often are uncertain about how to appropriately develop relationships with students. This can have a major effect on the success of faculty in the classroom and their personal satisfaction with their role as an educator. Faculty may indeed be very knowledgeable about the content they teach, but if they cannot relate in a positive manner to students, the students may not listen to the substance of the information being conveyed. Novice faculty should be encouraged to seek guidance on how to develop an effective interpersonal style with students.
Behaviors that help develop effective relationships with students are those that have been described throughout this chapter. Open, ongoing dialogue with students throughout the educational process is essential. Students have the right to expect respect from faculty for their ideas and opinions (although not necessarily agreement); constructive, helpful feedback on their academic performance; a willingness to answer questions and address concerns the student may have; and a respect for student confidentiality. Displaying an appropriate sense of humor and warmth with students is also important and allows students to see the human side of faculty.
Behaviors that are inappropriate and unethical in the teaching situation include using sarcasm or belittling the student, threatening the student with failure, criticizing the student in front of others, acting superior, discussing confidential student issues with other faculty, and displaying inappropriate sexual behavior. Standards and guidelines addressing sexual harassment are part of each institution’s policies and procedures. Nursing faculty must be informed about such policies and must follow them explicitly. Faculty may also serve to assist students to access appropriate resources should students have issues with sexual harassment by other members of the university community and need such assistance.
Showing favoritism in the treatment or grading of students, refusing to answer students’ questions, behaving rudely, and being authoritarian are other examples of unethical teaching behaviors. Student–faculty interactions that are based on the inappropriate use of power and control cannot result in caring, collegial relationships. In some institutions, policies govern the contact that is appropriate between students and faculty. Those policies must always guide decisions about appropriate student contact and interaction.
Faculty can foster the development of positive student–faculty relationships through the design of learning experiences that promote collaborative, collegial learning exchanges between faculty and students. Faculty need to examine their beliefs about the teaching–learning process and student–faculty relationships to gain an understanding of their own attitudes. The first step in the process of fostering a learning environment that is empowering for both faculty and students is conceptualizing the student–faculty relationship as a collaborative partnership instead of an authoritarian one.
Emerging legal issues
Today’s nurse educator is confronted with a variety of emerging legal issues that were not present a few years ago. Some of the most significant emerging issues deal with social media, high stakes testing, use of criminal background checks and drug testing, and current trends in litigation with nursing programs.
Social Media Use and Misuse
Social media has emerged within nursing education because of the potential for teaching innovations (Peck, 2014). Although social media is openly used in one’s personal life, use of social media within education or health care brings special legal concerns associated with confidentiality and privacy.
The National Council of State Boards of Nursing (NCSBN, 2011) prepared a white paper on the appropriate use of social media by the nurse (2018). They caution that nurses who breach confidentiality and privacy can be held liable not only for civil and criminal privacy violations but for a variety of consequences that can lead to disciplinary actions for the licensed nurse and continued employment. For students, such privacy violations can result in dismissal from school in addition to the civil and criminal sanctions.
Students and faculty must be aware of the issues with the use of social media. For example, information posted to social media cannot be regarded as private even though the individual may have set access restrictions to the information. It is also important to realize that even if posted information is later deleted, it may still be able to be retrieved.
Nurses and students must not use social media to post private patient information on any social media site. This includes the posting of written words and images. Postings that do not include the names of patients may still be considered violations of patient privacy when the postings can lead to the identification of the patient. Postings should never include disparaging or harassing remarks about others. These principles not only apply to posting patient information but also serve as guidelines for student postings about instructors or other students, as well as instructor postings about students and other students. Professional guidelines apply to postings on social media, and the poster will be held liable.
Many faculty are unaware of how social media operates and thus are not able to provide guidelines to students as to the appropriate use of social media as a nursing professional. Students may have established practices of openly communicating on social media without any consideration of professional standards related to social media. Without appropriate guidance from faculty, students may be unaware of the significant legal and ethical concerns related to the use of social media.
Violations of social media by nursing students are making their way to the courtroom. In Byrnes v. Johnson County Community College, et al. (2011), three nursing students posted a picture of a placenta on social media. The clinical instructor had given permission for the picture to be taken on the condition that there were no identifying marks present in the picture. The clinical instructor was told that the students involved intended to post the picture to Facebook. The college dismissed the students. Byrnes filed suit and prevailed on the basis that she was not afforded appropriate due process before being dismissed for an “academic” matter. The court characterized this as a disciplinary matter and noted that no patient privacy rights were violated in the photograph. Byrnes was reinstated as a student and allowed to continue her education. It is worth noting that the court stated there were no restrictions on this type of behavior or use of social media within the student handbook and the students had no way to know that posting the photograph would be an issue.
Another case involving a nursing student held in favor of a nursing program that dismissed the student for blogging about a patient who was giving birth (Yoder v. Univ. of Louisville, 2013). The court viewed the matter as “academic” (as the program argued) and not “disciplinary” (as the student argued). The distinction is significant, as disciplinary matters are held to considerably more due process safeguards. The court noted that the student’s first amendment right was waived by the student by her signing various agreements with the nursing program related to maintaining professional confidentiality. Case law reflects the importance of clearly identifying the required standard of conduct regarding the maintenance of professional confidentiality with social media.
High Stakes Testing
High stakes testing refers to any test that has significant consequences for the tester. In nursing, high stakes testing typically refers to nationally standardized examinations that are used to determine a student’s progress in nursing, such as when they are used as a requirement to pass a course or graduate. The use of high stakes testing has been debated in nursing education for several years. Court cases have held both in support of and against the use of high stakes testing. State boards of nursing have also weighed in on the appropriateness of using high stakes testing in nursing. Some state board of nursing have provided limits as to how high stakes testing can be used in nursing programs.
The NLN (2012b) developed the document Fair Testing Guidelines for Nursing Education, which supports appropriate testing and evaluation measurements that provide feedback on student learning and curriculum effectiveness but advises that more than one mode of learning assessment should be used to make high stakes decisions.
Litigation continues related to the use of high stakes testing in nursing education. The typical case involves a nursing program requiring students to take and achieve a set score on a high-stakes test to qualify for graduation regardless of previous academic performance in the program. Steps that nursing programs can implement to support the use of standardized testing would be to clearly provide adequate notice of the requirement, to support students who may not achieve the desired results from testing before facing disturbing consequences, and the use of multiple assessment methods for determining outcomes, such as graduation requirements. The nursing program must also consult with their state regulatory board for any specific state requirements regarding the use of standardized testing.
Use of Criminal Background Checks and Drug Testing
Many nursing programs require students to undergo criminal background checks and drug testing. This type of requirement has become quite common and is often required by the clinical agencies where students will be obtaining learning experiences. In determining program requirements, nursing faculty should consult with their state regulatory boards as to specific guidelines regarding the use of criminal background checks and drug testing and the educational institutional policies and the requirements of the clinical agencies used for student learning experiences.
Current trends in litigation within nursing education
Over the past few years, there has been a significant increase in the number of legal cases filed within nursing education with multiple causes of action. Some of these cases have been filed by attorneys and others have been filed by the students themselves acting in a “pro se” capacity (meaning they will represent themselves rather than retain an attorney for representation). For example, a CRNA student who was dismissed for clinical performance issues filed a suit with the following multiple causes of action: disability discrimination, defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and breach of contract (Walsh v. U. of Pittsburgh, 2015).
A review of case law also identifies cases by nursing programs against their state board of nursing (ATS Institute of Technology, Associate of Applied Science in Nursing Program, v. Ohio Board of Nursing, 2012; Camtech School of Nursing and Technological Sciences v. Delaware Board of Nursing, 2014; Ohio American Health Care, Inc. Practical Nursing Program, v. Ohio Board of Nursing, 2014). Health care programs have also sued accrediting agencies for “unjust” loss of accreditation (Professional Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and Colleges, 2014). Students are also filing suit against their nursing programs when they have lost professional accreditation (McCabe v. Marywood University, 2017). Overall the litigation within the nursing education arena is becoming more diverse and creative. As a result, the nurse educator must be vigilant to practice as a nurse educator according to legal principles and overall best practices.
Summary
This chapter provides an overview of the legal and ethical issues that are related to nursing education. The development of positive student–faculty interactions and the faculty role in evaluation of student performance is discussed. The legal and ethical concepts that guide student and faculty interactions and relationships are explained. Academic failure in the classroom and clinical setting is discussed, as are methods of assisting students through this difficult experience while ensuring their rights to due process. The importance of clear, mutual communication of expectations between students and faculty is emphasized. Current legal and ethical issues related to social media, high stakes testing, criminal background checks, drug testing and current litigation trends in nursing education are also presented.
Nursing students in today’s classroom exhibit different characteristics from those of faculty when they were nursing students. Today’s diverse students bring a richness of life experiences to the learning experience. Each student is an individual possessing a variety of knowledge, skills, values, beliefs, and needs that will help form the nursing professional that the nursing student wishes to become. It is important for nurse educators to meet the needs of these students by establishing professional relationships that are positive and empowering in nature, ultimately providing students with a learning environment that supports their personal and professional goals.
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