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Legal Watch: Quick Trips Bring Risks

 

 

By Ada Meloy
 
With the ever-increasing globalization of higher education, colleges and universities today are offering a multitude of study abroad opportunities to broaden and diversify their education programs. According to the U.S. Department of Education, the number of students participating in study abroad has more than doubled in the last decade. That’s not surprising, given that opportunities are increasingly flexible, as colleges provide more shorter-term trips that allow students to travel during school breaks to engage in research projects, disaster recovery work, language programs, and other cultural activity.1 However, the higher education community must be mindful that international programs—including short-term models—bring a myriad of legal issues, administrative challenges, and risk management considerations.
 
Traditional year or semester abroad programs are typically tied to established partnerships with institutions abroad or the institution’s own site in a different country. Such programs are likely to be subject to specific legal and regulatory standards because of their duration and presence in foreign countries as formal education programs. They generally require official registration with the local government. In addition, employment of any foreign nationals in conjunction with the program invokes numerous tax and employment considerations, such as tax presence, mandatory employee benefits, and local employee termination restrictions and procedures.2 Implementing such a program generally requires local legal counsel and expertise in compliance and regulatory matters.
 
By its nature, the short-term study abroad program usually does not generate the same impact of presence in the foreign country. Short-term programs are less likely to hire foreign nationals and are not likely to be subject to foreign finance and tax regulations to the same extent as a traditional program. Short-term programs are also typically afforded fewer resources from the home institution than traditional programs and are unlikely to have support or partnership with institutions abroad. The lack of formal partnership or affiliation with a sister school puts the sole responsibility for the program on the home institution and makes it particularly challenging when unforeseen problems occur abroad.
 
Minimizing the Hazards
Institutions should implement best-practice standards and guidance that can be tailored to the array of study abroad operating models. At a minimum, short-term study abroad program policy and administration should consider student health and well-being, emergency procedure and policy, effective risk management and prevention, liability and insurance, institutional support and local resources, program supervision and oversight, assessment, comparative socio-political climate and cultural norms, and local law as it pertains to the program and individual student conduct.

Even the most comprehensive training and support may not anticipate every situation that can occur, but such training should provide tools for faculty and campus administrators to confront the most common problems that can arise. Student health and safety is probably the most significant area to consider. Institutions may face serious public scrutiny, investigation, and liability if they do not have effective and practiced policies and processes in place.

Some short-term international programs, such as those formed to provide disaster aid and relief, place students and faculty in an environment in which they are susceptible not only to the increased spread of disease, but also to the risks inherent in socio-political instability. These focused programs must ensure compliance with all U.S. State Department regulations, guidelines, and travel warnings. Participating students and faculty should be required to undergo mandatory training and information sessions regarding any political or social instability in the foreign country. Program policy should require participating faculty and students to sign release forms, recognizing that they have received information concerning the risks associated with travelling overseas, are aware of the dangers associated with travelling to the specific region, and release the institution from any liabilities not associated with the program’s core responsibilities. Institutions should also reevaluate safety concerns and travel warnings immediately before departure and continue to monitor these advisories on a regular basis for the duration of the program.

Risk management should take into account not only general program health and safety requirements, but also individual student health and well-being. Programs may opt to provide voluntary medical forms and encourage students to supply any relevant medical history, including mental health issues. Institutions also should have written policy for short-term programs, mandating that program faculty and administrators report any incidents to personnel at the home institution. Problems may arise when program staff are caught off guard in a foreign country with no written policy or training to deal with student mental health incidents. Support administration and resources must be available for consultation on an on-call basis when incidents arise in foreign venues in different time zones.
 
Another important factor is how local law and socio-political atmosphere may affect student conduct abroad. Institutions should take measures to educate students on the cultural norms of the foreign country and outline the scope of students’ responsibility while abroad. Participating students should be required to sign a release stating that they understand they are subject to the laws of the foreign country and agree to comply with those laws, as well as the regulations and student conduct policies of the institution. The release should also outline grounds and procedures for dismissal from the program should the student fail to comply.
 
Safe and Sound
Systematic and consistent policy, resources, and support are critical components for all study abroad programs. Providing the necessary training and support for short-term programs is not only important to risk management and student safety, but it also encourages the growth of these programs. When colleges and universities take the appropriate steps to provide needed support and resources—at home and abroad—to ensure student safety and maintain the success of study abroad programs, these programs greatly enhance institutional efforts to educate global citizens.
 
 
Ada Meloy is general counsel for the American Council on Education. She gratefully acknowledges the assistance of Miyun Choe, law intern and student at University of California Davis School of Law, in preparation of this article.
 
 
Notes:
1. Green, M. F. (2005). Internationalization in U.S. higher education: The student perspective. Washington, DC: American Council on Education. Available at www.acenet.edu/Content/ NavigationMenu/ProgramsServices/cii/pubs/ace/ Inter%20student%20perspective.pdf.
2. May, P. F. (2010, March 21). 12 risky issues when hiring abroad. The Chronicle of Higher Education. Available at www.acenet.edu/. Click on Legal Issues and Policy Briefs under the Government Relations & Public Policy heading.
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