ÍÃ×ÓÏÈÉú

During Presidential election years many people have questions about the nature of permissible political activity/expression on campus. The Office of General Counsel prepared this FAQ for faculty and staff to help answer some of those questions. If, after reading this, you still have questions, please consult the Office of General Counsel at 529-6734 or generalcounsel@ÍÃ×ÓÏÈÉúOH.edu

For additional information please review the University Policy on Political Activity

Frequently Asked Questions

Individual Faculty and Staff Members

Q. Are there any restrictions on the political activities of faculty and staff?

A. Every faculty and staff member has the right to participate (or not) in the election process. ÍÃ×ÓÏÈÉú University embraces the rights of political expression and affiliation. However, ÍÃ×ÓÏÈÉú University itself does NOT participate in any campaign for public office. No member of the University community may speak or act on behalf of the University in a political campaign. Other restrictions are set forth in the University’s Policy on Political Activity (below). As a result, University policy is read as prohibiting faculty and staff from:

• Using University facilities, email, faxes, copiers, support services, or equipment for partisan political activities;
• Placing campaign materials (signs, banners, etc.) on University facilities including, but not limited to, bulletin boards and office windows;
• Carrying partisan political activity into the classroom;
  Writing letters in support of or in opposition to a candidate or ballot issue using University letterhead or using a University title as part of the signature; and
• Inviting any candidate for public office to come to campus to speak without notifying the Office of the President so that we can assure compliance with federal law. Depending on the circumstances this may include an obligation to provide an equal opportunity to other candidates to appear at a comparable event within a comparable time frame.

Voting

Q. Can the University Sponsor Voter Registration and Get Out the Vote Drives?

A. Yes, encouraging students and others to vote is entirely appropriate. Each fall, as required by federal law, the University and Associated Student Government conduct a voter registration drive for students.

Q. Can a Professor Give a Student Credit or Extra Credit for Voting?

A. No, it is a violation of Ohio’s elections laws for a college professor to give extra credit (or anything of value) to a student in exchange for voting in a primary, general or special election. (See Ohio Attorney General Opinion 96-033)

Q. Can the University Sponsor Voter Education Sessions or Publish Voter Education Materials?

A. Yes, however the legal boundaries between voter education (permissible) and issue/candidate advocacy (NOT permissible) can often be difficult to ascertain. Voter education materials must be carefully prepared to reflect candidate’s position on a broad range of issues. Please consult the Office of General Counsel for advice.

As a public university, the University does not celebrate religious holidays, but many of our employees do. Each year the Office of General Counsel is asked to provide guidance on the law regarding Christmas/holiday trees and other holiday decorations on campus and about University rules for giving and receiving gifts.

PEC Guidelines for Hosting Holiday and Other Events

The “welcome back” gathering at the start of the academic year, the holiday open house/party, and retirement receptions are an important part of campus life.  As you plan your event, please keep in mind that we are a public institution funded primarily by student tuition, tax dollars and funds gifted for the benefit of our students.

Some years, especially those when we have had to make significant personnel reductions or not been able to provide a salary increment, it may not be appropriate to host certain events as these types of activities should be in the initial round of any departmental or divisional budget reductions.

These Guidelines are intended to help you plan and host an appropriate event.

1. Events and gatherings must be charged to unrestricted gift funds or funds gifted to the University for this purpose
2. Events and gatherings should be held in University facilities
3. Events and gatherings must comply with University’s policy on
4. Events and gatherings may not be lavish or extravagant
5. Events and gatherings must comply with the University’s Hosting policies
6. Hosting of University employees for functions such as routine meetings, social functions, etc. is discouraged and should not be repetitive.

Guidelines for Display of Holiday and Religious Symbols

The concern is that certain types of holiday and religious displays may violate constitutional restrictions respecting the separation of church and state. As one court famously noted: “no holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays.

This guidance is intended to clarify what types of holiday displays are permissible on University property, including in employee offices and cubicles. These Guidelines are designed for employees and do not address the rights of students or student organizations. If you have questions about these Guidelines or about items not on this list, please contact the Office of General Counsel at generalcounsel@miamioh.edu or by calling 529-6734.

Decorations may not be purchased with any University funds -E&G, unrestricted or gift funds. If decorations are displayed in public areas they must be secular in nature. Christmas and holiday trees, reindeer, candy canes, tinsel, and poinsettias are typically not considered to be religious symbols. All holiday displays must comply with all applicable fire and safety codes. Holiday decorations may not be placed in such a manner as to impede entrances/exits to buildings, public areas or offices.

Religious Decorations in Employee Offices and Cubicles

Displays of religious decorations and symbols inside employees’ offices and cubicles are generally permissible. In fact, prohibiting an employee from displaying religious decorations and symbols in their offices /cubicles could be deemed to be a violation of the employee’s Constitutional rights of free exercise of religion and free speech.  Religious symbols include a nativity scene, a Cross or Crucifixion, Menorah, Star of David, drawings of Jesus or Buddha, and the Bible, Torah, Quran or other religious tome.

Christmas/Holiday Trees

The display of Christmas trees on campus is generally permissible. Courts have recognized that Christmas trees have become a secular symbol associated with the winter holiday season. Due to fire safety concerns, only artificial trees may be used.

Nativity Scenes and Menorahs

The display of nativity scenes and menorahs in public areas has generally been upheld by courts against legal challenges if they appear as part of a larger display with a secular purpose, such as the celebration of pluralism and freedom or the promotion of tolerance and respect for diverse customs. However, any holiday display with an overtly religious symbol (such as a nativity scene or a menorah) must include at least one other religious symbol from a different religious tradition. The legal validity of these displays is premised on the notion that they do not represent an endorsement of any particular religion, any religious doctrine, or religion in general.

Messages Accompanying Displays in Public Areas

Any message that might accompany a holiday display should be secular. Courts have upheld messages that celebrate pluralism and liberty and do not promote the observance of any religion.

University Rules for Giving and Receiving Gifts

Frequently Asked Questions

I Want to Give

Should I buy my supervisor a gift?

No. The University discourages employees from giving gifts to their supervisors or others who exercise authority over their employment.

Can I use unrestricted or gift funds to buy gifts for employees?

No. Holiday gifts are personal. No university funds (including unrestricted or gift funds) may be used to purchase holiday gifts. University credit cards may not be used to purchase gift cards or other gifts.

I have great employees who have worked hard all year-Is there anything I can do to honor them?

Yes. There are lots of activities to help celebrate the hard work and dedication of your employees over the past year. An office pot-luck lunch, a white elephant/gag gift exchange or even a simple thank you note will let people know their efforts are greatly appreciated.

I Want to Receive

What if I receive a gift from my supervisor?

The University does not encourage or discourage supervisors from giving gifts to those they supervise. If you receive a gift from your supervisor, accept the gift graciously. A thank you is all that is necessary.

Sometimes vendors send gifts- Is it okay to accept them?

It depends on whether the gift is of more than nominal value. Ohio’s ethics laws prohibit University employees from soliciting or accepting anything of value from a person, company, organization, or other public agency if the source of the gift is doing or seeking to do business with, regulated by, or interested in matters before the University.

The Ethics Commission has concluded that items of nominal value may be accepted as long as the gift will not have a substantial influence on the employee.

Vendors who wish to express their appreciation are encouraged to make donations to the ÍÃ×ÓÏÈÉú University Foundation Annual Fund in lieu of gifts.

If, prior to the start of a course, the faculty member anticipates recording classes or students and such recording will only be viewed by students within the class, then the faculty member is advised to note in the syllabus that the class will be recorded. Example of proposed syllabus language is as follows:

This class will be recorded and broadcast on the internet to students in this class. These recordings may contain your image and your voice. You must notify me as soon as possible if you DO NOT want your image and your voice contained on the video. Arrangements will be made to not include you in the recording.

Regardless of whether there is a note in the syllabus or not, if a faculty member opts to utilize recording as part of a class and such recording will only be viewed by students within the class, the faculty member should verbally notify the students in the course when the recording will take place. The faculty member should advise students that they are not obligated to be recorded and should make arrangements for those students who do not wish to be recorded. Access to viewing the recording must be limited to students within the course. If the recording is placed on a public web server then access must be limited to course participants by means of authentication

In the event that a faculty member intends to show the recording to an audience other than the course participants, then the faculty member should advise the students what the recording is to be used for and must obtain a Consent for Recording and Sharing of Class Session by all the students who will be appearing in the recording. The faculty member shall make appropriate arrangements for those students who opt not to be recorded or revoke their consent, but those students’ voice participation may be recorded.

Control of and Access to observation camera recording capabilities

The faculty member will be responsible for control of the recording process during the class. The ability to access the recording capabilities of observation cameras will be limited to the faculty member using the observation cameras for legitimate educational purposes, as well as authorized technical support staff.

Records Retention

The faculty member shall keep the signed consents as a permanent part of the class record. Both the consent forms and the recordings shall be maintained in accordance with the University’s record retention schedule.

These guidelines apply to the use of Lecture Capture to deliver content as an alternative or supplement to face-to-face learning.  As used in these guidelines, the term “Lecture Capture” means the recording (audio and/or visual) of lectures, demonstrations and any other type of content traditionally delivered in a face-to-face learning environment for uses such as content review, missed in-person learning, online learning and education, and other approved uses.  For purposes of these guidelines, Lecture Capture includes both the recording of actual classes as well as content recorded outside of a classroom context (i.e. without students or other audience present).  Such lectures may be pre-recorded and distributed to students ahead of time; they may be recorded during a live class session and made available for later review; or they may be recordings of remote instruction (e.g. classes presented through Zoom or a similar online platform).

Lecture Capture can take place in a variety of settings and be utilized for a variety of purposes. The rights and responsibilities involved in any Lecture Capture will depend on such things as the audience (both at the recording and those viewing the recording thereafter), the content being recorded, and the ownership of the content being recorded.

Definitions

Cross-listed Course

"Cross-listed Course" means, for any given semester, a course that is broken down into separate sections that may or may not meet on the same dates and time, or be taught by the same instructor.

FERPA

"FERPA" means the Family Educational Rights and Privacy Act, which is the federal privacy law that governs the access to student educational information and records.  For additional information, see the University’s FERPA policy.

Lecture Capture Content

"Lecture Capture Content" means classroom lectures, questions/answers shared among instructors and students, and other classroom materials (e.g. PowerPoint presentations, text comments on a whiteboard, shared Google Docs, chat applications, etc.) that are recorded and presented through a University provided Lecture Capture platform (e.g. Kaltura, etc.) or another University provided technology platform (e.g. Zoom, etc.).

LMS 

"LMS" means the Canvas learning management system, and any other learning management systems deployed by the University in the future. 

Compliance with Applicable Laws and Policies

When utilizing Lecture Capture faculty, staff and students must adhere to Federal and state laws and regulations and applicable University policies, including the following:

FERPA

All Lecture Capture Content must comply with FERPA and the University’s FERPA policy.  If Lecture Capture Content includes only instructor content and does not involve the recording of students (e.g. a “talking head video”), such content will not create FERPA concerns. If the Lecture Capture Content includes audio or video of any student interactions (e.g. students asking questions, making presentations, leading a class, etc.), or if it is possible to identify students through the subject matter of the recording, then such Lecture Capture Content likely constitutes protected educational records under FERPA.

Use of Lecture Capture Content within the University 

To ensure compliance with FERPA, instructors are strongly encouraged to place Lecture Capture Content that contains FERPA protected education records exclusively on the LMS and grant access only to students enrolled in the course section in which the recording took place.  Instructors are permitted to use and store Lecture Capture Content on Kaltura, Webex, Google Drive, and/or Zoom, provided that instructors (1) comply with the University’s Responsible Use of University Computing Resources policy; (2) comply with the University’s Records Retention Manual, and ensure that once the FERPA retention period is over that such Lecture Capture Content is deleted or disposed of appropriately; and (3) to the extent practicable, transfer Lecture Capture Content stored on Webex or Zoom to Kaltura for long term storage.   

It is further recommended that instructors advise students in the course syllabus that regularly scheduled classroom recordings are planned for the course and offer off camera seating to students who do not wish to be recorded. 

Lecture Capture Content associated with a single course may be shared with students in that course.  Lecture Capture Content associated with a Cross-listed Course may be shared with students in each section if (1) each section of the Cross-listed Course is taught by the same instructor; and (2) students are advised in the course syllabus or a course announcement that Lecture Capture Content will be shared with all students enrolled in the Cross-listed Course regardless of section assignment.  Lecture Capture Content associated with a Cross-listed Course that does not meet the above requirements cannot be shared with students in separate sections, and instructors should take steps to ensure student privacy and compliance with FERPA.

For pedagogical considerations and additional guidance on cross-listing and FERPA, please visit /digital-learning/support-for-lecture-capture-scenarios/index.html. 

If an instructor wishes to reuse or share Lecture Capture Content containing FERPA protected education records with University students not enrolled in the course section (or Cross-listed course sections) in which the recording was made, then the instructor must (1) obtain the permission of his or her department chair and (2) obtain a signed consent from each student recorded in such Lecture Capture Content.  All consents signed by students must set forth with specificity how the Lecture Capture Content will be used and the outside audience to whom it will be presented. The instructor shall retain such signed consents for as long as such Lecture Capture Content is made available. If a FERPA consent cannot be obtained for a student, then prior to sharing any Lecture Capture Content including the non-consenting student, the recording must be edited to either omit such student or otherwise de-identify such student.   Note that a FERPA consent will need to be obtained from the parents or guardians of any high school student enrolled in a College Credit Plus course if such person is under 18 years of age.  The University’s general FERPA release is accessible on the Office of General Counsel’s FERPA webpage.

Use of Lecture Capture Content Outside the University 

Making Lecture Capture Content that contains FERPA protected records available to anyone other than enrolled ÍÃ×ÓÏÈÉú students as described above, such as on a publically accessible internet platform, must in addition to obtaining the necessary consents be reviewed and approved by the Provost and the Office of General Counsel for purposes of compliance with FERPA and well as other applicable policies, including without limitation the University’s  policy.

Americans with Disabilities Act/ Section 504 of the Rehabilitation Act

Lecture Capture content must be made accessible for students with disabilities. See the University’s Accessible Technology policy.

Ohio’s Right of Publicity Law

Ohio law provides that no person shall use any aspect of an individual’s “persona” (name, voice, signature, photograph, image, likeness, or distinctive appearance” for a commercial purpose without such individual’s permission.  However, a use of an individual’s Persona by an institution of higher education is permitted if all of the following apply:

1. The individual is or was a student at, or a member of the faculty or staff of, the institution of higher education; and
2. The use of the individual’s persona is for educational purposes or for the promotion of the institution of higher education and its educational or institutional objectives.

All Lecture Capture Content that captures an individual’s persona must conform to the above principles or the consent of the individual must be obtained.  Lecture Capture Materials that involve the participation of third party speakers or participants must include a speaker consent. 

Guest Speakers

If a guest speaker will receive compensation of any form, then University Human Resources will need to make a determination as to whether the speaker is an employee or an independent contractor.  The requesting instructor will need to follow the process described on the following URL:  /academic-affairs/academic-personnel/administrators/independent-contractors/index.html.     

For speakers who are volunteering their services, instructors will need to have the guest speaker complete the .    

Questions pertaining to speaker agreements may be directed to John Woodard, Associate General Counsel, at woodarje@miamioh.edu.

Copyright and Fair Use

Copyright law protects the ownership interest of content creators and authors in their works. Lecture Capture Content must comply with copyright law when it contains the work of others (including the copyrightable works of students).  In order to utilize the copyrighted work of others, instructors must either obtain the author’s permission, or rely on an exception to copyright law.  Please see the Practical Guidance section below for more information regarding exceptions to copyright law (e.g. fair use, TEACH Act, etc.). 

Ownership of Lecture Capture Content

Ownership of Lecture Capture Content shall be determined in accordance with the University’s Intellectual Property policy.  To protect Lecture Capture Content, the instructor should inform students in the syllabus that the instructor has granted students access to the Lecture Capture Material for limited purpose of participating in the course  and the instructor requires written consent for students to duplicate or share, in any fashion, the Lecture Capture Content.  The following is sample language that instructors are encouraged to include in their class syllabi: 

"Some of the sessions in this course will be recorded or live-streamed. Such recordings/streaming will only be available to students registered for this class. The faculty member will provide you notice if any of these recordings/streaming will be shared with anyone outside of this course, and will obtain your prior written consent before sharing.  These recordings are the intellectual property of the faculty member [and  ______] and may not be shared or reproduced without the explicit, written consent of the faculty member [and ______]. Further, students may not share these sessions with those not in the class, or upload them to any other online environment. Doing so would be a breach of the Code of Student Conduct."

Prohibition on Sharing or Disseminating Lecture Capture Content

Anyone using or accessing Lecture Capture Content must comply with: all applicable copyright laws and all restrictions imposed by the instructor/owner; the University’s Responsible Use of University Computing Resources policy; and Unauthorized Peer to Peer File Sharing policy.  In most cases, students do not own any rights or have any interest in any Lecture Capture Content, and therefore cannot share or disclose any Lecture Capture Content by any means, including, but not limited to posting to social media, sending via email to non-classmates, and/or placing on third-party storage/sharing solutions (e.g., DropBox). Instructors should apprise students that a violation of these University policies could result in disciplinary action under the University’s Code of Student Conduct. 

Practice Guidance

FERPA

Copyright

All faculty and staff should consider the copyright implications of using any material in your teaching. To avoid copyright pitfalls, consider the following:

Linking to Library Resources

For articles, e-books, and other information sources owned by the ÍÃ×ÓÏÈÉú University libraries, you can avoid copyright complications by linking to those items on the vendor's website or in a database rather than copying it into your Canvas course.  Please contact your respective libraries for additional assistance.

Fair Use and the TEACH Act

Fair use is encoded in the U.S. Copyright Act, which also includes many other provisions allowing uses of words in the classroom and for other educational purposes.  Fair use is not an infringement of copyright - it allows under certain conditions a person to use copyright protected material without permission.  Fair use may allow us to clip, quote, scan, share, and make many other common uses of protected works. But not everything is within fair use. Fair use depends on a reasoned and balanced application of four factors: the purpose of the use; the nature of the work used; the amount used; and the effect of the use on the market for the original. A more in-depth discussion of fair use may be found .

The  (2002) (revised Sections 110(2) and 112 of the U.S. Copyright Law), also referred to as the TEACH Act, provides guidelines for using copyrighted material in e-learning courses.  In some cases it extends Fair Use provisions into the online education environment. The American Library Association has published a helpful guide related to the TEACH Act. 
Copyright issues involving fair use and the TEACH Act are highly detailed, and the right to use works is usually subject to many conditions and limitations.  Questions regarding copyright, fair use, and the TEACH Act should be directed to Carla Myers in the King Library at myersc2@miamioh.edu.