College Students Accused of Misconduct Deserve Greater Due Process According To U.S. Department of Education

When most people hear the term “Title IX,” they think of the law that requires universities to offer comparable athletic opportunities for both male and female students.

However, since 2011, Title IX has been in the news for a far different reason.  It all started with the Obama administration’s “Dear Colleague” letter, which told universities that receive federal funding to crack down on matters of sexual misconduct on campuses, under the auspices of upholding language in the law that prohibits discrimination in any educational program on the basis of sex.  The letter mandated that the lowest possible standard of proof should be used by the university in deciding whether a sexual offense has been committed, and to accelerate the final decision to within 60 days of receiving a report.

Faced with either complying with the directives or losing federal funding, universities began “throwing the book” at those accused of sexual misconduct on campus.  And those accused are overwhelmingly male.

On September 22, 2017, the “Dear Colleague” letter was revoked by the U.S. Department of Education, and replaced with new guidance that includes allowing universities to apply a heightened standard of review, “clear and convincing evidence.”

Despite the recent changes, many legal scholars still feel that most universities’ student affairs staff are poorly equipped to handle such matters, and that those accused are being deprived of their Due Process rights.

Often, the university employee who is conducting the relatively limited investigation is the same person who decides innocence or guilt, and the same person who imposes sanctions, up to expulsion. Other universities may employ a hearing panel to decide matters that may involve suspension or expulsion. And in most cases, the employees are not trained in the law, yet are armed with the authority to take away a student’s right to an education.  Although the Department of Education has withdrawn the 2011 Dear Colleague Letter, universities may still operate using the lower standard of proof required by the 2011 Dear Colleague Letter.

The attorneys at Petefish Law have experience defending students unfairly accused of misconduct in colleges and universities.  Before you agree to speak to the university “investigator,” contact our office to schedule a consultation, so we can protect your rights and keep you on track to get the degree you are working for.

Terence Leibold Elected as Vice President of Douglas County Bar Association, Matt Donnelly to serve as CLE Coordinator

Petefish attorneys have long recognized the uniqueness of Lawrence, Kansas and helped to ensure the continued vitality of this community through their service to local organizations.

Recently, firm partner Terence Leibold was elected by his peers to serve as Vice-president of the Douglas County Bar Association for the 2017-18 term.  Mr. Leibold previously served as Secretary.  Associate Matt Donnelly volunteered to serve as the Douglas County Bar’s Continuing Legal Education coordinator, which offers educational seminars to local attorneys on a variety of topics.

And firm partner Rick Hird recently concluded his nearly decade-long tenure as a Member of the Board of the Douglas County Bar Association.  Rick continues to assist, however, with many other local organizations.

It all goes back to one of the firm’s earliest members, Olin Petefish, who graduated from KU Law in 1935, practiced his entire career in Lawrence, and often represented the University of Kansas.  Based on his record of service over nearly 70 years, Mr. Petefish became the namesake of The Olin Petefish Research Award in the field of Basic Sciences at KU.  This award is given in recognition of research achievement in the basic sciences to an individual who may be described as having had a major and substantial impact and who has been of national and/or international interest. In 2001, his wife, Mary Ruth Petefish established the Olin K. & Mary Ruth Petefish School of Law Scholarship, which continues to assist students on the basis of financial need and academic merit.  And of course there is Petefish Drive near the Dole Institute of Politics on KU’s west campus, yet another tribute to Olin Petefish’s dedication to serving the Lawrence community.

In the same spirit of giving back that Mr. Petefish valued so strongly, our attorneys continue pledging their time to the local community.


KU to Allow Concealed Carry of Weapons, KU Basketball Probably Not

On July 1, 2017, barring any changes from the Kansas Legislature, a new law will go into effect requiring the University of Kansas to allow the concealed carrying of firearms in virtually all buildings on its campus, including classrooms.  This right to carry applies to anyone who is at least 21 years of age, and no training or certification of any kind is required.

Last week, a Kansas Senate committee considered a bill that would have kept concealed guns out of all public colleges and hospitals, but the bill was narrowly rejected.

Therefore, as the law stands, the only way that KU can keep guns out of its buildings is by providing “adequate security measures,” which would include the installation of metal detectors at all public entrances, and hiring armed guards to monitor the entrances.  Most observers see the implementation of these security measures as virtually impossible given the state of Kansas’ ongoing budget woes.

KU Athletics officials have discussed their intention to install metal detectors and possibly reduce the number of entrances into Allen Fieldhouse for basketball games, and Memorial Stadium for football games.  The additional security is estimated to come with a hefty price tag – over $1 million.  For fans, this will make the process of getting into each venue significantly slower.

For more information on the University of Kansas Board of Regents’ policy on weapons on campus, click here.


Petefish Partner Thomas Johnson Completes Federal Defender’s Office Trial Skills Academy in San Diego

Thomas Johnson was one of only 66 attorneys accepted to participate in the Federal Defender’s Office Trial Skills Academy at California Western School of law in San Diego.

The skills-based Academy took place in April 2016, and has been a tremendous success for attorneys who focus a large part of their practice on defending individuals accused of crimes in federal courts. The Academy focused on (1) the use of a trial advocacy process to facilitate development of a persuasive, fact-based theory and supporting themes, and (2) the advocacy skills necessary to persuasively advance that theory and those themes throughout the trial.  The Academy was led by a very experienced and skilled faculty through a series of plenary sessions and workshops. Participants then had the opportunity to engage in the hands-on practice of those skills and receive feedback in small group workshops.

KU Judicial Panel Disagrees with Student Affairs, Vacates Sanctions Against Student

After a recent hearing before the University of Kansas Judicial Board Appeals Panel, the panel issued its decision agreeing with arguments presented by Petefish associate Matt Donnelly, and reducing sanctions that had previously been imposed by KU against Donnelly’s client, an undergraduate student.

The sanctions were imposed by KU’s Office of Student Affairs based on an alleged violation of KU’s Non-Academic Misconduct Policy.  The sanctions included requiring the student to undergo a psychological assessment, which the student had to pay for out-of-pocket.  Additionally, if the student did not agree to the psychological assessment and provide a letter from the provider confirming completion, KU would not allow the student to enroll in the subsequent semester.

That sanction was deemed improper by the panel, and contrary to University Senate Rules & Regulations which state that KU’s discretion is abused “if it is based on improper considerations, entirely fails to consider an important aspect of the problem, or lacks a plausible explanation of the connection between the facts found and the recommendations made.”

The panel’s decision has allowed the student the peace of mind to resume studies, while at the same time protecting the private information of the student.

Human Resources Professionals Receive Warning from DOJ and FTC

Recently, the Antitrust Division of the Department of Justice and the Federal Trade Commission released guidance to alert Human Resources professionals that it is against the law for an employer to agree to fix wages or to agree not to hire another company’s employees. Both of these situations are deemed illegal under antitrust laws, and violation of the rules could lead to criminal prosecution. These policies are being highlighted to ensure that workers receive the benefit of free-market competition for their services, in the same way that companies are prohibited from fixing prices on consumer goods. Some legal professionals are calling this “a major policy shift,” and warning HR professionals to be careful when even discussing limiting employee compensation or recruiting. To find out more, contact an experienced employment law advisor at Petefish Law.

Fair Labor Standards Act – Federal Lawsuit

On November 22, 2016, just 10 days before a new law expanding overtime pay to millions of workers was to take effect, a federal judge in Texas halted the implementation of the Fair Labor Standards Act’s so-called Final Rule.

Twenty-one states, including Kansas, joined in a federal lawsuit seeking an emergency preliminary injunction to stop the Rule, arguing that the Department of Labor exceeded its authority by doubling the salary threshold for exempt employees from $23,660 to $47,476 per year. The Rule also required automatic adjustments to the salary threshold every three years moving forward.

The lawsuit was joined by the US Chamber of Commerce and numerous other business groups including the Texas Association of Business, National Automobile Dealers Association, the National Association of Manufacturers, National Association of Wholesaler Distributors, National Federation of Independent Business, National Retail Federation, and more than 50 other national businesses and organizations from around the country.

So what does this mean for employers? For now, employers may continue to follow the existing overtime rules until a ruling is made by the federal judge. The preliminary injunction that is now in place is not permanent – it just preserves the status quo until the court makes a final decision. But the judge would not have granted the preliminary injunction unless he found that the plaintiffs had a substantial likelihood of prevailing on the merits of the lawsuit, so it seems a good possibility that the Final Rule will at least be amended in some respects.

Stay up to date on the lawsuit and its impact on your business, your employees, and your bottom line by contacting one of our skilled advisors at Petefish Law.

Petefish Attorney Wins Gold!

Winemaking Award

Petefish attorneys have some interesting hobbies.  Petefish partner Rick Hird and his wife, Debby, and son, Scott, own Wild Hare Vineyard at their property in rural Baldwin.  They primarily sell grapes to local wineries, but Rick and Scott are also amateur winemakers.  They received favorable comments about their wines from area winemakers, but wondered how they might stack up with others on a broader scale.  So, Wild Hare Vineyard entered its first wine competition in July, with the modest goal of getting some helpful feedback from the judges.  However, the results were quite surprising.

In its very first attempt in a wine competition, the Wild Hare 2012 Norton won a Double Gold Medal at the 2015 Indianapolis International Wine Competition.  To put it in perspective, out of 2,100 wines entered in the competition, 140 received Double Gold.  The Hirds were thrilled to receive the unexpected award!

To see all of the results: