Well, here we all are in the post Roe v Wade era, and all things and directions seem to be new and confusing. The reason they seem to be new and confusing is because they are new and confusing. Whether you personally support or oppose any position in this unfolding legal quagmire, one thing you can be sure of is this: you aren’t going to know for sure just what to do or say to that student, or those students, who ask for wise counsel because your college or university legal advisor isn’t going to anytime soon know exactly how to counsel you! Isn’t that satisfying? No? Well, this is but one of many new personal “rights” issues that may walk in your door sometime soon.
So what do you do? First you can say: “I just don’t know how to counsel you.” It’s really OK to say: “I don’t know.” If you do more, or specifically say more than that, remember we in Texas are in a state that recognizes that one person in a conversation can record that conversation without advising the other they are recording it. That permissive rule doesn’t apply if you are recording a conversation in which you are not a participant – that is not allowed. But the active recording of conversations in which the recorder is actively involved is ok and this goes for phone conversations, and in person meetings (and even Zoom or Teams meetings). Any student (or anyone else – like your boss) with a smart phone can activate voice recording before coming to your office (or sit in your classroom and record you) and conceal their phone the entire time. So, beware – what you say in the confines of your office, or even in the classroom, may get broader coverage than you intend.
As time goes on we will all settle into a better pattern of understanding our limits on advising in these circumstances, but until we have developed that better understanding, the best practice is to keep your personal opinions to yourself. You may have free speech rights to say what you want to say, in or out of your job. While your employer is free to scrutinize only your work product – think though, do you need your employer to have a reason to more critically scrutinize your work? If you can absolutely prove any extra scrutiny comes about because of the exercise of your free speech rights, or because your employer harbors some discriminatory animus towards you, then you may have a case against the employer for judging you more harshly than others. My experience is, however, that being able to absolutely prove you have been singled out for extra scrutiny for illegal reasons is a very tough thing to actually accomplish.
So, am I saying just tape your mouth closed? Stop being that wonderful you, the one who has all the right answers for all the worlds ills? No, not at all. What I am saying is to recognize we are in a volatile time of change. A clearer path will emerge as we all live with the new changes that have occurred. Until then, perhaps a simple “I don’t really know” is the best answer. You can always redirect those hard to answer questions back to your favorite subject: the last lecture you gave, and preparing for the tests ahead! This too shall pass!”
“The information in this column is intended to provide a general understanding of the law, not as legal advice. Readers with legal problems, including those whose questions may be addressed here, should consult attorneys for advice on their particular circumstances.”