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Overview Of The Course

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Higher Education Law

OVERVIEW OF THE COURSE Why is this course important? Education is not separate from the “real world” – it is a huge part of it (concept of lifelong learning) – education is big business! he law reflects its uniue mission in our society – our higher education system is among best in the world" and the most comple# (pu$lic and pri%ate" many different types of institutions)& 't com$ines elements of almost all areas of law" $ut the uniue educational and research mission (see each article) is the constant undercurrent& (uestion: How unique is it, and is that changing?)& Some Themes of the Course * (! E"er#ise of dis#retion and $rofessional %udgment (a# (a#ademi# ademi# freedom and edu#ational mission!

a& +cademic freedom reflects and reinforces the fundamental mission of higher education – the mar,etplace of ideas-search for truth&  $& Educational institutions are uniue – not $ecause we.re smarter than e%eryone else" $ut $ecause &ea#h arti#le our mission is different& * /ni%ersities are essentially places of pu$lic trust" and stheir trustees are trustees trustee s for the pu$lic& hey get special pr pri%ileges i%ileges as a result& 0ourts often discuss discus the special positions that these institutions hold&

c& 1ur mission is not necessarily to $e as efficient as possi$le – learning can $e messy" and disputes and process can $e an important part of learning& i& hus" post2secondary institutions don.t necessarily ha%e to pay attention to the $ottom line& 3a,ing money is not the highest pur purpose pose for an institution (although it is a   purpose)& ('! efining and a$$l)ing the #on#e #on#e$t $t of *due $ro#ess+ , ma-ing ma-ing de#isions rational. ruling out #a$ri#iousness

a& How to define and apply due process in higher education (statutes and precedents usually don.t ha%e lots of detail4 we ha%e lots of latitude)  $& 'mportance of due process as an educational tool – and why colleges and uni%ersities are not the same as courts c& 'mportance of consistency and training of indi%iduals in%ol%ed in processes (faculty" staff" and students) where it.s not their full2time 5o$ (/! &alan#ing #om$eting rights and inter interests ests in higher edu#ation

a& 6eed to identify %arious constituencies in%ol%ed in an issue in higher education and their interests  $& E#&* tension $2t free e#pression and se#ual harassment& c& Question: What are some of these constit constituencies? uencies? · ·

7tudents 8aculty


· · · · · · · · · · · · · · ·


7taff  +dministration +lumni rustees-9egents :oliticians* Legislators" go%ernors" etc +ccrediting $odies ;eneral pu$lic-ta#payers 3edia 7tate for a pu$lic institution) “he (especially town” :arents-8amily <onors Licensees :u$lishers :eer 'nstitutions adm admiss issions ions law lawsui suits ts (Wh (Who o are are the playe players? rs? 6ote the ami amicus cus partic participa ipants nts&) &) speech %& harassment appropriate role of religion (e&g&"  Davies case)

here are few a$solutes in the law – much of the law is $alancing tests" not $right2line rules& <espite ha%ing thoughtful people" many choices made $y uni%ersities are not thoughtful or conscious or coordinated&

I0TROUCTIO0 TO HI1HER EUC2TIO0 32W 24 The Higher Ed Uni5erse 6ubli# Edu#ation

6ri5ate Edu#ation  


Higher Edu#ation

:u$lic colleges" uni%ersities" and community colleges

:ri%ate" secular" colleges and uni%ersities

3ower Edu#ation

:u$lic elementary" secondary" and pre2schools

:ri%ate" secular" elementary" secondary" and  pre2schools


:ri%ate" religiously2 affiliated" colleges and uni%ersities :ri%ate" religiously2 affiliated" elementary" secondary" and pre2 schools

=& :u$lic uni%ersities are go%erned $y the 0onstitution (=> th +mdt& and =th +mdt&) @& 0onstitutions do two things* a& Esta$lish go%ernment  $& :rotect people from go%ernment i& here are more protections from the go%t& in sectarian institutions than in secular& &4 Sour#es of 3aw

=& 0onstitutions 8ederal (says nothing a$out education) 7tate (many esta$lish systems of higher education) Aaffects higher ed more so than federalB · ·

@& 7tatutes (e&g&" discrimination statutes such as itle C'" itle 'D" +<+" 7ection > of 9eha$ilitation +ct" +<E+4 8E9:+)


F& +dministrati%e rules and regulations (e&g&" <epartment of Education on financial aid4 1ffice for 0i%il 9ights  policy and enforcement Anote e#amples of policy guidance on racial harassment and race2targeted race2targeted financial aidB) & 7tate common law (5udge2made law) – e&g&" contract and agency law & 'nternational law (e&g&" related to foreign campuses" faculty and student trips and e#changes" contracts) G& 'nstitutional rules and regulations (e#&* ylaws and 7:; here at the /ni%ersity /ni%ersity of 3ichigan4 faculty hand$oo,s) & +ccrediting agencies I& 1ther go%erning $odies (60++" conferences" Catican) J& 0ontracts (including collecti%e $argaining agreements) =>& +cademic custom (e#&* academic freedom4 ++/: policy statements) ==& 0ase Law (note distinctions disti nctions $etween elementary and secondary and higher education) C4 Some 1eneral Trends

=& 'ncreased litigation (employment" tenure" students" etc&) – courts sometimes defer less to educational  5udgments (how to define what is “academic” %& what is disciplinary" conduct" or procedural – see each article) @& 'ncreased regulation (federal and state – compliance issues" i ssues" reporting" etc& – e&g&" campus crime) F& 3ore institutional self2regulation (guidelines" regulations" etc&) & 8inancial pressures (rising costs" loss of go%ernment support" etc&) & 'ncreased use of technology ('nternet" online education) G& 9elationships with the t he corporate sector (e&g&" research funding) & 'ncreasing di%ersity (many new students" including non2traditional and foreign students" see,ing higher education) I& ;rowth of in2house counsel (including pre%enti%e and specialiKed wor,)4 6ational +ssociation of 0ollege and /ni%ersity +ttorneys (6+0/+)

6U&3IC 20 6RIV2TE I0STITUTIO0S , I0TROUCTOR7 C2SES 8th 2mdt 4 9rohn 54 Har5ard ,  says he was treated unfairly and wants to say Har%ard is a state actor& 0ourt says in this case" the fact that e%eryone treats Har%ard as a pri%ate institution does the tric,& 0ourt says  has not created a ne#us $etween the admissions process with any other act of the state&  suspects that his re5ection was a$out race" $ut no such facts are on the record&  alleges all eges H.s admissions process is discriminatory4 he didn.t get in $ecause he.s white& 24 6ubli#:6ri5ate



=& State 2#tion o#trine – 8ederal 0 applies to state actors through the = th +mdt& his is important $-c  pri%ate institution that acts as pu$lic institutions in certain ways can $e drawn into the realm of $eing a  pu$lic institution and can ha%e certain rules (imposed $y the 0) applied to them& 7ee the attempt in  Hack v. Yale& @& Rutgers v. Richman – 6M proposed a statute that would ha%e transferred control o%er 9utgers from d& of rustees to d& of ;o%ernors ;o%ernors (state2controlled)& 9utgers was hurting $adly and needed state N" $ut state couldn.t gi%e N to a pri%ate company& company& uestions were* =) whether ta,e2o%er ta,e2o%er was constitutional4 @) whether d& of rustees had *a +s fiduciary to accept thersity offer&will $e maintained" the transfer is accepta$le& a& Holding long asduty mission of uni%ersity uni%e accepta$le& 6o constitutional pro$lem $-c 9utgers is a “hy$rid institution” w-pu$lic and pri%ate components" and that is fine&  $& 6oint* shows it is accepta$le for / to ha%e pu$lic-pri%ate components4 also the first introduction to the “mission of the uni%ersity” theme that comes up again and again& F& Hack v. Yale – e%eryone.s gotta gotta li%e in the dorms for @ y years ears at Oale4 1rthodo# Mews aren.t aren.t into it& hey st th say Oale acts li,e a pu$lic institution" so they say Oale %iolates =  (free association)"   (unreasona$ly “seiKing” their money)" and =th (eual protection) amendments& hey say Oale is state actor $ $-c -c there are go%t& actors on its $oard and 0 0onstitution includes Oale.s charter& a& Holding* Oale not a state actor $-c doesn.t meet Leron standard that an actor so entwined w-go%t& is thought to $e part of the go%t& i& 3ust meet all three of these to $e a state actor under  Leron* (=) go%t& must ha%e created the entity $y special law4 (@) the go%t& created the entity to further go%t.l o$5ecti%es4 (F) go%t& retains a “permanent authority to appoint a ma5ority of the directors of the corporation&” &4 6ubli# Forums

=& State v. Schmid  –  – guy is distri$uting La$or :arty materials materials on :rinceton.s (pri%ate) ca campus& mpus& Oou need to ha%e permission to distri$ute materials on campus" $ut 7chmid didn.t ha%e it PQ arrested& a& Holding* (=) 6o =st +mdt& argument for 7chmid $-c :rinceton is not intermingled enough with the state to $e considered a state actor& (@) 6ubli# Fun#tion o#trine – generally" the more the pri%ate property is de%oted to  pu$lic uses" the more uni%ersities ha%e to recogniKe the rights of the general pu$lic to use that property& 0ourt esta$lishes three principles to see see how “pu$lic” :rinceton is* (=) the nature and purpose of the property4 its i ts “normal” use (@) the e#tent and nature of the pu$lic.s in%itation to use that property (F) the purpose of the e#pressional acti%ity underta,en upon such property in relation to $oth the pri%ate and pu$lic use of that property& (F) -c the purpose of :rinceton (forum for contro%ersial speech-opinion) is consistent with 7chmid.s handing out literature" it is a pu$lic forum and can.t refuse access to him&  $& 6oint* pri%ate uni%ersities can regulate their spaces as pri%ate actors" $ut the regulations tthey hey de%elop ha%e to $e consistent with their educational educational mission& 'f you are considering considering opening up your pri%ate / for discourse" need to $e careful" $-c can.t $e choosy among people&

2C2E;IC FREEO; he concept has a long history&


;erman uni%ersities had two concepts of academic freedom*  Lehrfreiheit: 8reedom to teach – professors should $e free to conduct research and pu$lish findings without fear of reproof from the church or the t he state (adopted $y ++/: in i n the =J= <eclaration)&  Lernfreiheit:  + corollary right of students to deter determine mine the course of their studies for themsel%es&

he purposes of uni%ersities (see course pac, p& F" under RF) – compare to the functions noted $y the 7upreme 0ourt in the !rutter  (/ni%ersity  (/ni%ersity of 3ichigan Law 7chool) decision& 'nstitutional (freedom from e#ternal forces) %& indi%idual (freedom from institutional constraints) academic freedom – can $e complementary" or in i n tension (see 9a$$an article) +cademic freedom is not 5ust limited to what the 0onstitution 0onstitution and the law protect& (9a$$an)

<= e#laration of 6rin#i$les on 2#ademi# Freedom and 2#ademi# Tenure =& +t the time" t ime" professors were $eing fired $ecause of their %iews on the gold standard (radicals seen as a threat to the social order)& @& /ni%ersities should $e a ha%en from political whims – a place where unpopular ideas can $e discussed and considered& F& 0omparison of faculty to 5udges appointed $y the president (they ha%e responsi$ilities to the pu$lic" not  5ust to a political leader)&

<8> Statement of 6rin#i$les on 2#ademi# Freedom and Tenure 'ntroduction* ·


:urpose it to protect the common good (not 5ust the interests of indi%idual faculty or institutions) he common good depends upon the free search for truth and its free e#position 4 an unfettered a$ility to figure out how the world wor,s and disagree& disagree& (<oes anyone disagree with that sstatement? tatement? Who might?)

4 Tenure is a means to #ertain ends? ·

8reedom of teaching" research" and e#tra2mural acti%ities&


+ sufficient degree of e#onomi# se#urit) to ma,e the profession attracti%e to t o men and women of a$ilit a$ility& y&

'4 2#ademi# Freedom in#ludes rights and #or #orres$onding res$onding res$onsibilities?


ea eache chers rs are are entit entitled led to ffull ull fre freedo edom m in rese researc arch h and and in the pu$ pu$lica lication tion of resu results" lts" su$5ec su$5ectt to the ade adeua uate te  performance of their other academic duties – / research for pecuniary pecuniary return should $e $ased upon an understanding with the authorities of the institution& eachers are stewa stewards rds of ,nowledge and are not there only to promote their self2interest&


eachers are entitled to freedom in the classroom in discussing their su$5ect" / they should $e careful not to introduce into their teaching contro%ersial matter which has no relation to their su$5ect (see laterS  the Dilawar "dwards "dwards case at 0alifornia /& of :+)&


Limitations of academic freedom $ecause of religious or other aims of the institution should $e clearly stated in writing at the time of the appointment& appointment& (Limitations 0lause) T 6ote statement RF (= (=J>)* J>)* “3ost church2re church2related lated institutions no longer need or desir desiree the departure from the principle of academic freedom implied in the =J> 7tatement " and we do not now endorse such a departure&” Question:  #s that true toda$? toda$? c&

0ol 0olleg legee and and uni% uni%ers ersity ity teac teacher herss are are citiK citiKens ens"" me mem$e m$ers rs of a le learn arned ed prof profess ession ion"" and and offic officers ers of an an educational institution& they spea, write asincitiKens" they should $e fr free ee from o$ligations& institutional +s censorship or discipline"When / their specialorposition special the community imposes special scholars and educational officers" they should remem$er that the t he pu$lic may 5udge their profession and their institution $y their utterances& Hence they should at all times $e accurate" should e#ercise app appropriate ropriate restraint" should show respect for the opinions of others" and should ma,e e%ery effort to indicate that they are not spea,ing for the institution& 9a$$an* 0onstitutional academic freedom thus may pr pro%ide o%ide professors more protection protection for  professional speech and less protection for unprofessional unprofessional speech than the free speech clause would afford the same statements $y nonacademics&



hese rights apply to all faculty – whether tenured or not& his statement is incorporated into most faculty hand$oo,s" and in many faculty collecti%e $argaining agreements as well& Why is this important? he 8irst +mendment to the /&7& 0onstitution applies to indi%idual rights %is2U2%is pu$lic institutions only4 8irst +mendment rights do not e#ist at pri%ate institutions& E%en at pu$lic institutions" rights of free speech are limited $y the “pu$lic concern” test – a $alancing test that weighs the interests of the institution %& the interests of the spea,er&


 6ote the relationship of </E :910E77 to academic freedom – procedures tend to help cur$ ar$itrary and capricious decision2ma,ing" and to allow for multiple %oices and %arious points of %iew to $e considered& ·

 6ote the signatories o%er the years&

[email protected]) 54 0ew Ham$shire (=J" p& [email protected]) 3c0arthy era – 9ed scares in higher education and in other creati%e communities& :rofessor refuses to answer uestions a$out his family" friends" and the t he su$stance of his lectures (e&g&" did he espouse 3ar#ism) – he refused to answer& The U4S4 Su$reme Court found that the go5ernmentAs inBuir) into the sub%e#t matter of a Uni5ersit) of 0H le#turerAs $resentations *unBuestionabl) was an in5asion of the le#turerAsD l e#turerAsD liberties in the areas of a#ademi# freedom and $oliti#al e"$ressionareas in whi#h w hi#h go5ernment should be e"tremel) reti#ent to tread4+

1ne ,ey passage on academic freedom (p& =F=" second paragraph)* he essentiality of freedom in the community of +merican uni%ersities is almost self2e%ident& self2e%ident& 6o one should underestimate the %ital role in a democracy that is played $y those who guide and train our youth& o impose any strait 5ac,et upon the intellectual leaders in our colleges and uni%ersities would imperil the future of our 6ation& 6o field of education is so thoroughly thoroughly comprehended $y man that new new disco%eries cannot yet $e made& :articularly is that true in the social sciences" sciences" where few" if any any"" principles are


accepted as a$solutes& a$solutes& 7cholarship cannot flour flourish ish in an atmosphere atmosphere of suspicion and distrust& eachers and students must always remain free to inuire" to study and to e%aluate" to gain new maturity and understanding4 otherwise our ci%iliKation will stagnate and die& T 9ole of uni%ersities in sustaining democracy – note the parallel of this case to present2day de$ates a$out national security" the :atriot +ct" and international scholars and students& 8ran,furter.s concurrence also recogniKes institutional academic freedom (p& =FG" middle)* “'t is the $usiness of a uni%ersity to pro%ide that atmosphere which is most conduci%e to speculation" e#periment" and creation& 't is an atmosphere in which there pre%ail *the four essential freedoms+ of a university Sto determine for itself on academic grounds who may teach" what may $e taught" how it shall $e taught" and who may $e admitted to study&” ALanguage cited in %akke and other cases&B  6ote the nature of the freedoms mentioned hereSall relate to the educational functions" $ut do not esta$lish un$ridled autonomy in ma,ing all decisions&

3e5in (p& =>) and effries (p& =G) (wo faculty at the same institution" 0/6O) Le%in* ·




'n his writings (letters" $oo, re%iews)" :rofessor Le%in e#pressed racially denigrating theories outside the classroom (denigrating the intelligence and social characteristics of $lac,s)& 'n response" 0/6O dean created alternati%e “shadow classes” for his students to transfer into" if they t hey so desired&  6one of his students had e%er complained of unfair treatment on the $asis of race& :resident created ad%isory committee to determine whether Le%in.s %iews affected his teaching a$ility&

The #ourt found no e5iden#e that 3e5inAs e"$ressions of theories outside the #lassroom harmed the students and the edu#ational $ro#ess within the #lassroom4 It fo#used on the *#hilling effe#t+ on s$ee#h resulting from CU07As a#tions& 2dding the additional *shadow se#tions+ did not ha5e a legitimate edu#ational $ur$ose4

Meffries* ·

lac,2studies professor sued uni%ersity officials for allegedly remo%ing him as department chair $ecause of contro%ersial off2campus speech& 'n the “+l$any speech"” Meffries addressed addressed the $ias of 6O 7tate.s pu$lic school curriculum and the history of $lac, $l ac, oppressionSand made se%eral derogatory statements"  particularly a$out Mews&

Court? effriesA a#ademi# freedom was not infringed b) redu#ing his term as de$artm de$artment ent #hair be#ause of his s$ee#h (whi#h in5ol5ed a matter of *$ubli# #on#ern+!& Why not?  &e#ause the $ $osition osition of #hair was *$urel) ministerial.+ and $ro5ided no greater $ubli# #onta#t than an ordinar) $rofessorshi$4

2 He was still a tenured professor" and the defendants had not sought to silence him" or otherwise limit his access to the “mar,etplace of ideas” in the classroom& TT0ourt says that the trustees t rustees acted upon a reasona$le $elief that Meffries. speech would cause harm to 0/6O& he $oard reduced his chairmanship $-c of concern for the institution" which is an accepta$le reason to ta,e


action (701/7 had recently decided Waters " which said that go%t& can fire an employee $ased on reasona$le  $elief of what person said if go%t& employer can show the speech is li,ely to $e disrupti%e)& Question: Why are they treated differently? differently?  9emem$er the = =J> J> 7tatement – rights and  responsi$ilities  responsi$ilities

 VVVVVVVVVVVVVVVV  S;233 1ROU6 ISCUSSIO0 – :rofessor 9asmusen" 'ndiana

8acts-uestions to 0onsider  · · · · · ·

How is the we$site la$eled (personal %& institutional)" and how clear is its role What do other faculty do on their we$sites-$logs What is the relationship to t o his area of e#pertise" if any? 'mpact on gay students in and outside his classes +ny other e%idence that he treats students differently on this $asis? What if he ser%ed on a uni%ersity committee on discrimination issues (or on a 5udicial $oard handling a case in%ol%ing alleged discrimination against a gay student" etc&)

7ome 0onstituencies to 0onsider* · ·

7tudents 1ther 8aculty

· · · · ·

+lumni 7tate legislators ;eneral pu$lic ;L community 3edia

7ome :olicy 'ssues* · · · ·

7tatements $y /ni%ersity leadership (see 1.6eil article) 0ompare to Levin and &effries cases and the school.s response in each case :ro%ision of we$sites to faculty (as well as staff and-or students also)" and any restrictions on their use 7pea,ing as indi%idual %& spo,esperson for /ni%ersity


 (@>>=) (p& [email protected]) Urofs-) 54 1ilmore (th 0ir& @>>>)" cert. denied  (@>>=)


C+ enacted a law that restricts the a$ility of state employees to access se#ually e#plicit material on state2owned or leased computers& 7e%eral C+ pu$lic college and u uni%ersity ni%ersity professors challenged challenged the law" alleging that it interfered with their academic freedom to research and teach& he law allowed employees to access such materials with permission from a state agency head (which could $e uni%ersity deans and department heads)" if deemed necessary in connection with a $ona fide research pro5ect or other underta,ing& th

The $ubli# #on#ern test is a$$lied b) the 8  Cir#uit? ·



7ays that go%ernment can control the speech $ecause it pays for it& 7ays that gaining access to these materials on state computer is acting in an employee capacity (note comparison to the wor,2for2hire doctrine in copyright law and the faculty e#ception)& (:& =II)* “+ny right of academic freedom freedom & & & inheres in the /ni%ersity" not in indi%idual professors&” professors&” (7ays academic freedom is merely a professional norm4 considered $y ++/: and others to $e a radical departure) ·


 p& =II" n&I* uestion a$out how to draw lines $etween faculty and other “intellectual” wor,ers&  p& =J>" n&[email protected]* 0ourt recogniKes indi%idual academic freedom in dicta as a matter of policy" $ut distinguishes it from constitutional protection (remem$er different sources of law" and their hierarchy)4 Luttig echoes this distinction on p& @>=& Wil,inson concurrence* He notes that faculty generally spea, for themsel%es" not on $ehalf of the o institution – $ut Luttig disagr disagrees ees with that asser assertion tion (p& @>=) (9e (9emem$er mem$er Levin  &effries cases from last wee,)&


 p& =J=* 6ote the ma5ority.s citation to 8ran,furter.s concurrence in 'wee($ and its em$race of institutional autonomy&

eferen#e to Edu#ational e#isions (Wil,inson" p& @>I)* “'t is well esta$lished that fede federal ral courts ha%e no  $usiness acting as surrogate uni%ersity deans&” Other Constitutional Challenges (3onaghan.s dissent) – need for a tight fit $etween the means and the ends with wi th this sort of statute (similar to “strict scrutiny” test applied to considerations of race) Underin#lusi5e?  't prohi$its only some speech that aallegedly llegedly distracts employees from 5o$2re 5o$2related lated duties& (uestion* 'sn.t the real pro$lem a management management challenge of ma,ing sure that people are doing their 5o$s and getting their wor, done" regardless of the source of possi$le distractions?) O5erin#lusi5e (o5erbreadth!?  't prohi$its legitimate research and ccommentary ommentary on a %ariety of disciplines and social pro$lems (as well as illegitimate we$2surfing to porn sites on wor, time) Other T)$es of Challenges* e&g&" 5agueness  (reasona$le person person can.t figure out what is prohi$ited)& prohi$ited)&

2C2E;IC TE0URE (GJ) Tenure is a means to #ertain ends (<8> ( <8> Statement!? ·

8reedom of teaching" research" and e#tramural acti%ities&




+ sufficient degree of economic security to ma,e the profession attracti%e to men and women of a$ility & A6ote recent threats with insistence that t hat faculty ha%e outside sources of funding – e&g&" research grants from corporate or other sources&B

Question: What is tenure?  (Eu$en" p& @F) – :rotection :rotection from termination" after completion of a pro$ationary pro$ationary  period" e#cept for adeB adeBuate uate #ause #a use or finan#i finan#ial al e"igen#) e" igen#) &

 6ote the relationship to due $ro#ess in higher education (discussed in rown  urland article)& efore =J=" faculty were freely fired for ta,ing contro%ersial positions& 'n recent years" tenure has $een slowly eroding in higher education* ·

9ise in use of part2time" ad5unct" and non2tenure2trac, faculty (see statistics on pp& @G2)


/se of post2tenure re%iew

+t some institutions" displacement of tenure with contracts of fi#ed durations QUES!"# $from %oursetools site&: !s tenure nece necessary ssary to 'rotect academic freedom? Why or (hy not? ·

 6ote responses on the 0oursetools we$site (legal-constitutional protection for academic freedom %& tenure)& ·

;ar-et anal)sis* ·


'n a competiti%e mar,et" let uni%ersities hire and fire faculty without tenure4 faculty and students will watch how uni%ersities handle academic freedom freedom and respond accordingly& accordingly& +ndy ;rewal) 9esponse (3ario We$er)* We$er)* ut the mar,et is ne%er per perfect" fect" and fails to protect minority rights and dissenting %oices as in the 3c0arthy era& o

 6ote that some schools ha%e tried to offer more lucrati%e contracts to faculty who agree to forego tenure (gi%ing the school more fle#i$ility) – $ut others ha%e criticiKed the idea that anyone should $e as,ed to ma,e such a choice in%ol%ing an important right&

QUES!"#: What are some )enefits of ten tenure? ure?

+s mentioned a$o%e" academic freedom and economic security (ena$les faculty ta,e ris,s in teaching and research" leading to long2run $rea,throughs) 1ate-ee$er fun#tion?  enure forces a more more rigorous re%iew proce process ss than in most other professions ((aa $it li,e  $ecoming a partner in a law firm?) QUES!"#: What are some concerns (ith tenure tenure? ?

Lac, of producti%ity-deadwood (how do faculty compare with wor,ers in other fields?) 8aculty who are uncooperati%e and hard to manage Economic costs – especially with wit h the end of mandatory retirement :ro%ides incenti%es to focus on research and pu$lications rather than teaching and ser%ice  6ature of the process may fa%or “safe” researchS$ecause researchS$ecause more senior" esta$lished department colleagues may not understand or relate to new areas of research


Lac, of fle#i$ility (when enrollments shift among disciplines" e&g&) – especially during times of financial e#igency Lac, of opportunities for younger scholars &alan#ing Rights? 7ee the uote on the $ottom of p& @@ cited $y +$igail lac, on the we$site* “ABenure car carries ries the implication of 5oining an e#tended family4 that is the social contract& Each side can see, a di%or di%orce* ce* he uni%ersity only in the most e#traordinary circumstances" and the professor as easily as a male under 's 'slamic lamic law& 't

is not an and une%en $argain $ecause uni%ersity needs its share of talented people" and professors trade life2long security familial relations for the lesser economic rewards&”   S;233 1ROU6 ISCUSSIO0S? H76OTHETIC23 TE0URE C2SE , 6ROFESSOR SUE 7U1ISE (note issues related to dis#retion in tenure. dis#rimination and #onfidentialit) of $eer re5iew re#ords. #ollegialit) as a #riterion! Constituen#ies?  :rofessor Ougise" other ffaculty" aculty" the department-tenure committee" future tenure committees and other departments" the department chair and other faculty mem$er-alleged harasser" students" potential %ictims and perpetrators of se#ual harassment" media" Ougise.s political contacts" ++/:" alumni" the oard" the pu$lic Con#erns?  Handling and timing of allegations of se#ual ha harassment" rassment" use of collegiality as a criterion (and consistency" etc& of your approach)" considerations in the tenure process" charges of retaliation" campus climate" defamation claims Other Fa#ts?   How was the pre%ious allegation handled-in%estigated4 handled-in%estigated4 what types of documents and information are typically part of the tenure file4 what are the t he appeals criteria in tenure cases4 history of tenure re%iew in the department4 strength of her candidacy %& others" etc&

Uni5ersit) of 6enns)l5ania 54. EEOC (=JI>) (p& @F) 8aculty mem$er sued for race" se#" and national origin discrimination under itle C'' after ha%ing $een denied tenure& U4S4 Su$reme Court held that? ·


CommonGlaw $ri5ilege would not be re#[email protected] to $rote#t #onfidential $eer re5iew materials from dis#losure and First 2mendment right of a#ademi# freedom would not be e"$anded to $rote#t materials from dis#losure&

here are costs either way here (p& @J) – +gain" there.s a uestion a$out the limiting $rin#i$le  that would distinguish peer re%iew of faculty from other professions (p& @J)4 0ourt later cites cases discussing di scussing limits on freedom of the press in refusing to di%ulge di %ulge their sources&

CO33E1I23IT7  (as a cr criterion iterion in promotion and tenure decisions)

:olicy de$ate* 7hould it $e aan n independent criterion" o orr $uilt into others ((e&g&" e&g&" ser%ice)? (see ++/: statement 1n 0ollegiality as a 0riterion for 8aculty E%aluation" p& @GJ)   “0ollegiality is not a distinct capacity to $e assessed independently of the traditional trium%irate of scholarship" teaching" and ser%ice& ser%ice& 't is rather a uality whose %alue %alue is e#pressed in the suc successful cessful e#ecution of these three functions&” (p& @GJ) ·



'nherent su$5ecti%ity* 0an it $e a smo,escreen for discrimination? 's collegiality more important in administrati%e positions li,e department chair? 'nstitutional autonomy* +s noted in 0onnell  7a%age (p& (p& @G)" courts ha%e genera generally lly deferred  to academic institutions in their use of collegiality as a criterion&

;#Clure 54 0e5ada (@>>@)* Uni5ersit) has broad dis#retion in de#iding tenure b) determining that #ollegialit) #an be a fa#tor in su#h a de#ision4 (6laintiff had alleged that se#ret letter letterss were soli#ited from fa#ult) and staff as $art of her re5iew. whi#h was not ordinaril) done4!


2SSI10;E0T OF COURSE 1R2ES  6ote the constituencies in%ol%ed* 7tudents" faculty" and the institution as a whole (among others)& ++/:* 8aculty mem$er is ordinarily solely re responsi$le" sponsi$le" $ut mechanisms for appeal appeal should e#ist to ensure that there was no discrimination" use of inappropriate criteria" etc& (see p& @I=)

6arate 54 Isibor (=JIG) (p& @J=) Court said that a $rofessor #ould not be b e #om$elled to #hange a grade (be#ause assignment of a grade  e"$ression!

ut not all cases agree (see Eu$en outline" p& @IF) – this is an e#ample of the tension $etween institutional  prerogati%es-autonomy and indi%idual faculty rights  6ote distinction $etween a faculty mem$er.s interest in the grade they assign %& their interest in the ultimate grade recei%ed $y the student (e&g&" Yohn case)&

&rown 54 3i (/027anta ar$ara) (@>>@) (p& F>F) <oes the uni%ersity ha%e the right to re5ect a master.s thesis $ecause of the inclusion of a “disac,nowledgments” section" criticiKing %arious school school and go%ernment officials? (6ote the $alance of rights and responsi$ilities in the =J> 7tatement principles on academic freedom&) he uni%ersity held his degree for almost a year and placed him on academic pro$ation" ma,ing him ineligi$le for a uni%ersity teaching or research research position and for financial support& 't was always willing to let him graduate if he remo%ed the offending section (hence 9einhardt.s dissent says that the /ni%ersity ne%er really cared a$out rown.s cheating – i&e&" going $ehind the committee.s $ac, in su$mitting the disac,nowledgments section to the li$rary)&  6ote the court.s reliance on Ha(elwood   " a precedent from the elementary and secondary conte#t – the court concludes that Ha(elwood    articulates the standard for re%iewing re%iewing a uni%ersity.s assessment of a student.s academic wor,& he application of [email protected] prece precedents dents to higher education" especially in the academic academic freedom-institutional autonomy conte#t" is often highly contro%ersial& o

7ee 9einhardt dissent (pp& F= et se&) arguing that Ha(elwood  should  should not $e applied to more mature students in the postsecondary setting&

7tudent rights %& institutional rights Issue of Consisten#) (p& F=F)* “While it would $e prefera$le" as a matter of academic policy policy"" for indi%idual professors to stri%e for uniformity when e%aluating students. wor," inconsistency among indi%idual professors in applying academic standards to students. wor, does not %est students with a constitutional right to passing grades on papers that would meet the appro%al of the easiest2grading  professor& here is no 8irst +mendment right to consistency&” o


7ee p& [email protected] at the $ottom* +nother offensi%e disser dissertation tation ac,nowledgment that was appro%ed $y a different thesis committee& 'n other cases" consistency of application of rules is important to demonstrate that you are not discriminating against someone $ased on the content of their speech (or on other" non2permissi$le grounds such as their race or gender)&



STUE0T RI1HTS We.%e discussed academic freedom rights and res$onsibilities of faculty and institutions – and how tenure and due  process protect them& ut students in higher education ha%e ha%e rights also& 1ne theme we.ll e#amine in the ne#t ffew ew wee,s is to what e#tent uni%ersity students are treated as adultsSto what e#tent do the power relationships matter? (Lots of contro%ersy o%er the e#tent to which precedents from the elementary and secondary school setting should apply to colleges and uni%ersities – e&g&" in student pu$lications" se#ual harassment cases" etc&)&

22U6 oint Statement on Rights and Freedoms of Students  (p& [email protected])  6ote the $ac,ground-groups that came together (p& [email protected])& “8reedom to teach and freedom freedom to learn are insepara$le insepara$le facets of academic ffreedom&” reedom&” (p& [email protected]) ut – “7tudents should e#ercise their freedom with responsi$ility& he responsi$ility to secure aand nd to respect general conditions conduci%e to the freedom to learn is shared $y all mem$ers of the academic community&” (p& [email protected]) – 6ote the suggestion that institutions should $e honest and straightforward a$out admissions criteria& 2 6ote the new /23 guidelines on admissions (%ery detailed)& In the #lassroom ($4 /'J!? ·

:rotection of freedom of e#pression – $ut responsi$le for learning course content&


:rotection against improper academic e%aluation – $ut responsi$le for meeting performance standards&


:rotection against improper disclosure – $ut faculty can disclose information under appropriate circumstances& Student Re#ords?

Famil) Edu#ational Rights and 6ri5a#) 2#t (FER62! :ro%ides for the protection of student records" with certain e#ceptions&

· · ·


Student 2ffairs (p& [email protected]) 8reedom of +ssociation (note nondiscrimination reuirement) 8reedom of 'nuiry and E#pression 7tudent :articipation in 'nstitutional ;o%ernment – note the concept of academic (shared) go%ernance – %ery different than corporate settings 7tudent :u$lications

OffGCam$us Freedom (including e#ercise of rights of citiKenship)

 6ote description of due process rights of students (not the same protection as tenure" howe%er)&

Relation to the Uni5ersit) , some themes?


'n lloco oco parentis parenti s

0ontractt theory $etween student 0ontrac studentss and the insti institution tution

0omparisons 0ompari sons to elementar elementary y and secondary educatio education n

Question $from (e)site discussion&: !s the 'ro'osed %olorado legislation legislation on 'rotecting the 'olitical )eliefs of students a good idea $see $see %hronicle of Higher Education article dated *+,-+-&? *+,-+-&? Why or (hy not?

What assumptions are $eing made here a$out the current state of affairs on college campuses? <aren at,e response (0oursetools site)* he e#istence of clear policies and procedures may create a means to resol%e complaints without litigation& 's there a slippery slope argument here a$out legislati%e inter%ention?  6ote hate speech de$ate (upcoming)&

EUC2TIO023 U1;E0TS 20 UE 6ROCESS

&oard of Curators of the U4 of ;issouri 54 [email protected] (=JI) (same year as  %akke) Su$reme Court held that a#ademi# defi#ien#) (rather than dis#i$linar):mis#ondu#t d is#i$linar):mis#ondu#t! dismissals do not ne#essitate a hearing before a s#hool de#isionGma-ing bod)4

8acts* ·


8aculty were unhappy with medical school student.s clinical performance" and a faculty2student 0ouncil on E%aluation recommended that she not $e allowed to re2enroll& 7tudent was gi%en an opportunity to ta,e a set of oral and practical e#ams as an “appeal” of the decision not to permit her to graduate (with  practicing physicians)&

Question: Wh$ the distinction etween etween )rocesses for reviewing academic deficie deficienc$ nc$ v. misconduct *udgments?

+cademic deficiency is an educational 5udgment (academic freedom4 remem$er grading cases)& 3isconduct is a 5udgment against certain certain standards& here might $e factual disputes that need need to $e aired&  p& F>* “he educational process is not $y nature ad%ersarial4 instead it centers around a continuing relationship $etween faculty and students" one in which the teacher must occupy many rolesSeducator" ad%isor" friend" and" at times" parent2su$stitute&”  p& F=* 6o showing of ar$itrary or capricious decision2ma,ing here& “0ourts are particularly ill2euipped to e%aluate academic performance&” 7ee n&G* uestions a$out personal hygiene" hygiene" relationships with colleagues and patients (remem$er (remem$er collegiality discussion)" and timeliness – are those academic or disciplinary 5udgments?

6ro#edural ue 6ro#ess (=th +mendment to /&7& 0onstitution)





his concept is limited to guarantees of fair de#isionGma-ing process (=th +mendment" applies to states as well as federal go%ernment)& 'ndi%iduals are entitled to a fair procedure (hearing?) $efore $eing depri%ed of a life. libert). or $ro$ert) interest& 3ibert) interest P free from physical restraint or “stigma plus” “damages to reputation plus some

additional harm" such as una$le to o$tain further employment $ecause of the stigma& 6ro$ert) interest P a legitimate claim of entitlement& ·

uestion in this case is whether the students is denied a “li$erty” or “property” interest in $eing dismissed from medical school" and" if so" what process is due $efore that interest can $e denied& 0ourt* 7he had no property interest in a seat at the medical school& 7he argued a li$erty interest in pursuing her medical education" or getting a 5o$ in the medical field (note that the /ni%ersity did not pu$liciKe her failure to the medical community)& 7he got as much due process as the t he 0onstitution reuires (lots of informal “gi%e and ta,e” with the school)& E%en in disciplinary proceedings" educational institutions need fle#i$ility to ma,e the process educational in nature&

Regents of the Uni5ersit) of ;i#higan 54 Ewing  (=JI) (p& F@) 8acts* · ·



Ewing got the lowest score on the 63E test in the program.s history& he :romotion and 9e%iew oard %oted unanimously to drop him from the program& program& He appeared  personally $efore them and as,ed them to reconsider& hey reaffirmed their decision& He appealed the oard.s decision decision to the E#ecuti%e 0ommittee of the 3edical 3edical 7chool& He once again was heard in person" on se%eral occasions" and asserted a right to reta,e the test (which the 7chool denied)& 0onsistency 'ssue (p& F) – 3any other students were w ere gi%en a second chance to ta,e the t he test ($ut not all)& o

ut the /ni%ersity had no process guaranteeing this right& 0ourt focuses on the narrow a%enue for 5udicial re%iew* <id the faculty act in an ar$itrary or capricious manner? (9ational $asis test* 6ot whether the 0ourt agrees with the su$stanti%e decision)  p& FI* “When 5udges are as,ed to re%iew the su$stance of a genuinely academic decision" such as this one" they should show great respect respect for the faculty.s professional professional 5udgment& :lainly" they may not o%erride it unless it is i s such a su$stantial departure from accepted academic norms as tto o demonstrate that the person or committee responsi$le did not actually e#ercise professional 5udgment&” Thus. the Su$reme Court held that e5en if i f a studentAs assumed $ro$ert) interest in a si"G)ear $rogram of stud) #ulminating in an undergraduate degree and a medi#al degree ga5e rise to a substanti5e right under due $ro#ess #lause to #ontinued enrollment free from arbitrar) state a#tion. the studentAs dismissalwhen he failed an e"am reBuired to #om$lete the final ' )ears of the $rogramwas not a due $ro#ess 5iolation4 The de#ision was made based on an e5aluation of his entire a#ademi# #areer at the uni5ersit)&

0o5a Southeastern Uni5ersit) (see article on p& [email protected])


+ former medical student sued the college after he was gi%en a failing faili ng grade in the final course that he reuired to graduate& ur) ruled that the institution had brea#hed an im$lied i m$lied #ontra#t with the student. and that its de#ision to gi5e him a failing grade was arbitrar) and #a$ri#ious& (Why? We.d wa want nt to ,now more facts here&) here&) ·

 6ote that the court in this case treated it more li,e a $usiness relationship go%erned $y a contract than an educational relationship&

rial court awarded damages for tuition e#penses onlyS$ut appeals court allowed damages for lost earning capacity& +warding student for the future %alue of a lost degree& What are the implications for grade grade inflation? 8or admissions lawsuits? (Worst2case scenario* + class action suit see,ing damages for the %alue of the entire student $ody.s future earnings&)  6ote 3a,ar.s recommendation (pp& FGF2G) –0olleges should see, to restrict restrict student damages (e&g&" in contracts with the students)" and spell out other aspects of the relationship (e&g&" reuire +<9 to resol%e academic disputes)& ·

Question: Do $ou think +akars recommendations recommendations are good ideas? ideas?


Writing Question: You are asked to develo) a )olic$ for $our universit$ on the criteria for )roviding  funding and other forms forms of su))ort for student o organi(ations? rgani(ations? What would $$ou ou recommend, and wh$?  (6ate <aun2arnett" elli alisi," <aren at,e" +ngela im" Mo6es CanHec,e)

'ssues* · · · · · · · · ·

:u$lic %& pri%ate uni%ersity H0/? 9eligiously2affiliated institution? /se of space Lac, of funds to accommodate all reuests4 need to prioritiKe Lia$ility of /ni%ersity-use of /ni%ersity name and logos 7ecurity and other legal concerns 'mpact on students and community (hostile en%ironment?) “Eual time” for opposing %iews? How to handle protests

3a,ing 9ules-:olicy* · · · · · · · ·

Educational mission  6um$er of students in%ol%ed or interested (does this discriminate %& minority %iewpoints?) 9easons for denials How to handle appeals of denials uality of presentation and leadership :ast record of organiKations (<o you ,eep trac, of how their e%ents go?) 0ontent2neutral time" place and manner regulations 1ther policies that regulate conduct rather than the content of speech

Rosenberger Rosenb erger (<<=! (<<= ! (p& FGG)



+ /ni%ersity of Cirginia regulation prohi$ited funding of any groups that primarily promote or manifest %iews on the merits of religion& Su$reme Court held that denial of funding (from Student 2#ti5ities Fund! to a Christian news$a$er at the Uni5ersit) of Virginia 5iolated the First 2mendment4 2 mendment4

1nce it has opened a limited forum" the 7tate must respect the lawful $arriers it has itself set (note the difference  $etween pu$lic and pri%ate institutions on this point)& 't was not an Esta$lishment 0lause pro$lem" $ecause the o%erall funding program was neutral toward religion (i&e&" it was not esta$lished to further religious %iewpoints)& he /ni%ersity had not e#cluded religion religion as a su$5ect matter& 'nstead" it selected for disf disfa%ored a%ored treatment those student 5ournalistic efforts with religious editorial %iewpoints& he alternati%e would $e for uni%ersities to screen e#pression of student groups for religious %iewpointsSa $igger  pro$lem& 7carcity of funds does not permit /ni%ersity to discriminate $ased on %iewpoint& he /ni%ersity is not the spea,er (this is not prescri$ed curriculum" etc&)Sit is simply pro%iding opportunities for organiKations and students to e#press themsel%es" ac,nowledging the di%ersity and creati%ity of student life& 't is not eui%alent to adenying direct ta# to support a religion (go%ernment speech" endorsing religion" which is prohi$ited)  Sinstead" it in%ol%es rights to a pri%ate spea,er who endorsed religion (and such speech is protected)& ·



 6o pu$lic funds flowed directly to Wide -wake .s coffe co ffers rs & he dissent.s %iew would reuire the /ni%ersity to scrutiniKe the content of student speech to ensure it does not ha%e too great a religious content& 9emem$er academic freedom discussions a$out when indi%iduals or organiKations are spea,ing for themsel%es" %& spea,ing for the institution& o

his speech is unli,ely to $e attri$uted to the /ni%ersity (p& FI> – note /ni%ersity.s funding of a humor magaKine that has targeted 0hristianity as a su$5ect of satire" and a pu$lication designed to  promote a $etter understanding of 'slam to the /ni%ersity community)&

7outer dissent* he 0ourt relied on on use of forum  cases (e&g&" spea,ing on a pu$lic street corner) – $ut this case in%ol%es pro%ision of a tangi$le benefit &  &

Southworth (@>>>) (p& >G) 7tudents sued the /ni%ersity of Wisconsin" alleging that the student acti%ity fee %iolated their 8irst +mendment rights" and that the /ni%ersity must grant them the choice not to fund organiKations that engage in political and ideological e#pression offensi%e to their personal $eliefs& /nder the /ni%ersity policy" student organiKations had to ma,e clear that they were spea,ing for themsel%es& 't allowed reim$ursement for certain types of e#penses only (printing" postage" supplies" etc&)& 't did not permit e#penditures for politically partisan or religious acti%ities& 8unding was not allowed for organiKations with a primarily political orientation" or for lo$$ying& Su$reme Court held that? ·






The Firs Firstt 2mendme 2mendment nt $erm $ermits its a $ubli# un uni5ers i5ersit) it) to #harge #harge its st student udentss an a#ti5it) a#ti5it) fee us used ed to fun fund da $rogram to fa#ilitate e"tra#urri#ular student s$ee#h. $ro5iding allo#ation of funding su$$ort is vie('oint neutral 4

0ourt* here is symmetry with osenerger   * he /ni%ersity may ssustain ustain the e#tracurr e#tracurricular icular dimensions of its programs $y using mandatory student fees with %iewpoint neutrality as the operational  principle& 'n the uni%ersity setting" the 7tate is underta,ing to stimulate the whole uni5erse of ideas  & o insist upon as,ing what speech is germane would $e contrary to the %ery goal the /ni%ersity see,s to pursue& '4

The 5iew 5iew$oint $oint neutra neutralit) lit) reBu reBuireme irement nt of the Un Uni5ers i5ersit) it) of Wis Wis#onsi #onsin n fee $ro $rogram gram was in ge general neral suffi#ient to $rote#t the rights of the ob%e#ting students. but the student referendum as$e#t of the $rogram a$$eared to be in#onsistent with the 5iew$oint neutralit) reBuirement. and a remand was reBuired4 Question: Why is the student referendum as'e as'ect ct a 'ro)lem?

0ourt* ecause it can su$stitute ma5ority determinations for for %iewpoint neutrality (and hence may fail to protect minority %iews)& /4

2n o$tio o$tional nal or ref refund und s)st s)stem em is not a #on #onstitu stitutiona tionall reBuir reBuirement ement (i4e4. (i4e4. )ou donAt donAt ha5 ha5ee to gi5e student studentss a list of $rograms that the) donAt want to su$$ort!4 ·


7outer.s concurrence* He notes that tuition is used to fund lots of speech that might offe offend nd students (e&g&" courses featuring contro%ersial topics" readings" etc&)&

There is no dis distin#t tin#tion ion betwe between en #am$u #am$uss a#ti5it a#ti5ities ies and the of offG#am fG#am$us $us e"$ressi5e e"$ressi5e a#ti5it a#ti5ities ies of funded funded $rograms4

7u$seuent finding ( /r$ v. %oard of egents of the 0. of W Wisconsin isconsin '$stem" @>>@ WL F==G=F> ( th 0ir& 1ct& =" th @>>@) @> >@)**   0ircuit said that the mandatory fee sy system stem does not unconstitutionally g grant rant the student go% go%ernment ernment unfettered discretion" e#cept as to the funding of tra%el grants for which the student st udent go%ernment has yet to adopt specific funding criteria&)

Question: What are some safeguards you could )uild into the system to )olster vie('oint neutrality?  · · · · ·

Written criteria 9ecords of deli$erations :ro%ide written reasons for denials upon reuest Esta$lish procedures to a%oid conflicts of interest among decision2ma,ers Esta$lish an appeal process

3earning Outside the Classroom? 2#ademi# Freedom in the *Real+ Wor World ld

Writing uestion* What are some limitations" if any" that should $e placed on the a$ility of clinical programs programs in law and other fields in terms of cases they handle" issues they can address" etc&)? (ristin Maco$y" <e$orah ;oldfar$) th

Southern Christian 3eadershi$ Conferen#e. et al4 54 Su$4 Ct4 of 3a4  (  0ir& @>>=) (p& @>)



ulane En%ironmental Law 0linic had challenged a chemical plant.s placement in a particular locale for en%ironmental reasons& he plant e%entually was located elsewhere" and state politicians g got ot upset with the clinic& 3a4 Su$reme Court issued rule limiting li miting the #ir#umstan#es under whi#h students #ould engage in the $ra#ti#e of law (#lini#al wor-!4 The #ourtAs rule tightened tightened indigen#e reBuirements for #lini#al re$resentation. and $rohibited students from re$resenting #lients soli#ited b) the #lini#4

0ourt characteriKes this decision as a #ontentGneutral  refusal to pr promote omote $ri5ate  speech " not a regulation that  punishes speech& ·

he students had no right  to practice lawSthe %ery e#istence of clinical programs is an educational $enefit that the 7tate has granted to Louisiana law students&


7tudent 1rganiKations-+ntiwar 3eeting 8ederal 5udge ordered <ra,e /ni%ersity to hand o%er information related to an antiwar meeting" sponsored $y the <ra,e chapter of the 6ational Lawyers Lawyers ;uild and held in 6o%em$er on the campus& 8our people who attended were ordered to appear $efore a federal federal grand 5ury& he 5udge also issued a gag order to all in%ol%ed& /nder pressure" the /&7& +ttorney.s +ttorney.s office withdrew the su$poena& ut $ecause grand 5ury deli$er deli$erations ations are secret" the in%estigation of the meeting might not yet $e o%er& 2#ademi# Freedom for Fa#ult) and Students

7imilar to the 01 legislation we.%e seen" new proposed federal legislation would urge all pu$lic and pri%ate colleges and uni%ersities to adopt an +cademic ill of 9ights& Student [email protected] and 0eutralit)

+t /ni%ersity of 3ichigan" 37+ %oted to fund $uses to ta,e students to the “3arch for 8reedom of 0hoice” in Washington& he 3arc 3arch h is a demonstration for a$ortion rights& (6ote* 7ome representati%es noted that the student go%ernment was o$ligated to foster student participation in current issues" regardless of their stanceS  and hence should not $ase participation on a student.s %iewpoint&)

'tudent 1ews)a)er at an eligiousl$2-ffiliate eligiousl$2-ffiliated d #nstitution

oston 0ollege student newspaper came to a compromise with the administration o%er editorial control of the  pu$lication& 0ollege officials had initially reuested that the paper change its policies on ad%ertising content and editorial practices as a condition conditi on of the lease renewal for the pu$lication.s campus office& he newspaper agreed to pay current mar,et rent in i n order to a%oid ma,ing concessions the administration admini stration reuested such as $anning all alcohol and to$acco ad%ertising and appointing a faculty ad%isory $oard to o%ersee editorial content& (+ se#ually e#plicit ad%ertisement for a oston nightclu$ had raised the ire of 0ollege officials&) he editors pledged to use more more 5udgment in selecting ad%ertisements" and to refuse ads from family2planning organiKations li,e :lanned :arenthood&

9esearch-:u$lications and 9eligion 0ollege professor was $anned from a 63 'ndian communit community y after writing an essay a$out a sacred tri$al dance that was pu$lished in a newspaper&





he $anishment means that :rofessor 6aran5o could $e arrested if he enters aos :ue$lo& 3any tri$es prohi$it sacred dances from $eing recorded in stories or photographs $ecause they $elie%e doing so detracts from the ritual.s spiritual significance&  6aran5o said he was inspired $y the “deer dance” and su$mitted a short essay to a newspaper writing contest (he too, first place and won N=>>)&

Question: #s this a violation violation of his a academic cademic freedom? freedom? Wh$ or wh$ not? ·

't was not the college that reprimanded him (and not the state or federal go%ernment)&


ri$al so%ereignty is different than actions of state or federal go%ernments&


:erhaps professor had a responsi$ility to $e familiar with the customs of the people (issue that arises with human su$5ects research and oral histories" etc& in i n other countries)&


We.%e discussed academic freedom rights and responsi$ilities of institutions" faculty" and students& · · · ·

eaching 9esearch 7peech in and 1utside the 0lassroom (e&g&" rights as citiKens) 7tudent organiKations (remem$er osenerger  and  and 'outhworth – Oou can ha%e student acti%ity fees supporting a wide range of student organiKations" $ut the money must $e allocated in a 5iew$ointGneutral manner)



RE3I1IO0 20 THE 2C2E;7  6ote historic connection $etween religion and higher education (many +merican colleges and uni%ersities were founded $y religious sects)& First 2mendment?  :rohi$its the establishment of any particular religion" $ut also protects free e"er#ise&

&ob ones Uni5ersit) (<L/! (p& FF) Su$reme Court? 0on$rofit $ri5ate s#hools that $res#ribe and enfor#e ra#iall) ra#iall) dis#riminator) admissions standards on the basis of religious do#trine do not Bualif) as ta"Ge"em$t [email protected] under the Internal Re5enue Code. nor are #ontributions to su#h s#hools dedu#tible as #haritable #ontributions4

 6ote the list of amici on p& F& a#2e#emption is a pri%ilege and is intended to encourage certain types of acti%ities for the pu$lic good& ·


7tandard for >=(c)(F) e#emption – institution must ser%e the $ubli# interest (as defined $y certain $road categories such as education)" and its purpose must not $e so at odds with the “common community conscience as to undermine any pu$lic $enefit that might otherwise $e conferred&”  6ote :owell concurrence* his standard of “ser%ing the pu$lic interest” is hard to pro%e" and could $e used against groups with minority or dissenting %oices&

o$ Mones /ni%ersity denied admissions to applicants engaged in an interracial marriage or ,nown to ad%ocate interracial marriage or dating& he sponsors of the /ni%ersity genuinely $elie%ed that the i$le for$ids interracial dating dati ng and marriage& '97 changed its rules in =J>S$efore =J>S$efore that time" o$ Mones /ni%ersity /ni%ersity had en5oyed ta#2e#empt status& 6ote how the decision reflects societal %alues and consensus (0ourt notes that “there can no longer $e any dou$t tthat hat racial discrimination in education %iolates deeply and widely accepted %iews of elementary 5ustice&”) (9ehnuist dissent* 0ongress" not the '97" should ha%e made the policy change&) 0ourt says that issue of racial discrimination (particularly in education) ha%e $een among tthe he most %igorously de$ated issues in our history (p& )" and educational institutions that practice racial discrimination cannot $e encouraged $y ha%ing all ta#payers ta#payers share in their support support $y way of special ta# status& (0ompare to “opt2out” discussion in 'outhworth" where some students o$5ected to certain student organiKations that recei%ed student acti%ity fee funds& Wh$ is this different?) Muestion for dis#ussion? When might it be a$$ro$riate for the go5ernment to $rohibit e5en religiousl) based #ondu#tN (e4g4. what if a religion #alled for huma human n sa#rifi#e. #hild molestation. et#4N!

;olds$oro 0hristian 7choolsSaccepted 0aucasian students only" for the most m ost part& &alan#ing test *  * he go%ernment.s o%er o%erriding riding interest in eradicating racial discrimination su$stantially outweighs outweighs whate%er $urden denial of ta# $enefits places on the schools. e#ercise of their religious $eliefs&


The *3imitations+ Clause in the <8> Statement of 6rin#i$les on 2#ademi# Freedom and Tenure (p& J) “Limitations of academic freedom $ecause of religious or other aims of the instituti institution on should $e clearly stated at the time of the appointment&” he standard standard is adeBuatel)  e#plicit" not absolutel)  e#plicit e#plic it (p& G=)&  6ote the long history of ++/: in%estigations at religiously2affiliated institutions (e&g&" O/)" followed $y a recent dialogue& 7ource of authority* ++/: has censure power power"" $ut no formal legal authority& +nother source of authority* authority* church hierarchies (e (e%en %en hierarchies outside the /7) E#&* The Catholi# #hur#h and E/ and E/ %orde Ecclesiae  E/ %orde * +n “+postolic 0onstitution” promulgated $y the Catican and applied to the /7 &

ey pro%isions* =&

9euir 9euires es 0ath 0atholics olics who te teach ach th theolog eology y at 0atholic 0atholic ccollege ollegess to o$ o$tain tain a mandatum from the “competent ecclesiastical authority” (namely" the local $ishop – someone who is not an academic official)&

;aguire (p& GJ) –innote 9atKinger uote onisp&that uote =22 0hurch is not the petrification of what once was" $ut its li%ing presence e%ery age&” (0oncern the “he  reuirement could stifle academics who mandatum “reimagine” the future of the 0hurch&)

Local $ishops would $e forced to decide what are the essential teachings of the 0hurch" and what ideas and topics are less central (and hence 1 for disagreement)& @&

0alls ffor or 0atholics 0atholics to consti constitute tute a ma ma5ority 5ority o off the fa faculty culty at at 0atholi 0atholicc colleges& colleges&

0ourts are usually reluctant to del%e into the %alidity or sincerity of the $eliefs of %arious religious groups&

Wolterstorff (p& GF)S He argues that academic freedom always has strings attached" 5ust as free speech is not an a$solute right&

“here is more freedom to discuss religion in the pri%ate sector than in the pu$lic sector of higher education& “'n the  pri%ate sector" one can e#plore and espouse religiously grounded grounded lines of thought that one would not $e allowed to e#plore or espouse espouse in the p pu$lic u$lic sector&” (p& GG) 73+LL ;91/: <'70/77'167* ED+7 E0H '1L1;O :918E7719 +6< LEE97 18 9E0133E6<+'16

Remember roles and res$onsibilities of fa#ult) members and students4 Com$are to grading #ases4 What if all the faculty made similar decisions? Would it make a difference if he (as the only faculty mem)er in a 'articular de'artment? %ould a religion 'rofessor do this?

Edwards 54 California Uni5ersit) of 6enns)l5ania (Fd 0ir& =JJI) (p& )



enured Education <epartment professor sued uni%ersity" alleging that its restrictions on his choice of classroom materials" criticisms of his teaching t eaching performance" and imposition of discipline %iolated his rights to free speech" due  process" and eual protection& he class was “'ntroduction to Educational 3edia&” he course originally focused on use of %arious classroom classroom tools& Later sylla$i prepared $y Edwards included a new emphas emphasis is on issues of $ias" ce censorship" nsorship" religion" and humanism" and he listed numerous pu$lications on these issues as suggested or reuired reading& 7tudent complained that Edwards was using the class to ad%ance religious ideas& 7chool as,ed Edwards to refrain from ad%ancing religious $eliefs through his lectures and handouts& handouts& he faculty %oted to reinstate the former sylla$us (saying his sylla$us was not appro%ed)& Edwards was assigned to teach an additional course& Court? 2 $ubli# uni5ersit) $rofessor does not ha5e a First 2mendment right to de#ide what will be taught in the #lassroom4 2 $ubli# uni5ersit) #an #ontrol its #urri#ulum4 #urri#ulum4

't also said that any stigma $ased on his temporary remo%al from certain classroom duties did not constitute a %iolation of a protected libert)  interest under due processShe was still employed& (0ompare to Levin case earlierS  creating “shadow classes” so students could a%oid Le%in.s course4 Le%in was" howe%er" teaching his assigned su$5ect matter&)

9emem$er the $alance of faculty rights and responsi$ilities in the =J> 7tatementSacademic freedom iin n teaching"  $ut a responsi$ility to teach the su$5ect matter and not to introduce contro%ersial su$5ect matter that is outside the scope of the course&

2"sonGFl)nn 54 ohnson (U4 of Utah!  (<&/tah @>>=) (p& I=) (7ee also new decision) 7tate uni%ersity theater student sued uni%ersity" claiming that reuirement that she spea, all lines written for her character during acting acti%ities %iolated her constitutional constit utional rights (free e#ercise of religion and free speech)& 7he was a 3ormon student in an actor training program& When as,ed at the outset a$out things that made her uncomforta$le" she ga%e some e#amples of language she did not want to use& Without appro%al or notice to her instructor" she remo%ed some phrases she found o$5ectiona$le& o$5ectiona$le& Her grade was lowered on at least one assignment& 7chool claims that reuiring students to t o perform offensi%e scripts ad%ances the school.s pedagogical interest in teaching acting in at least F ways* =&

't teac teaches hes students students how to step step outs outside ide their o own wn %alue %aluess and cha characte racterr $y forc forcing ing them to as assume sume a %ery %ery foreign character and to recite offensi%e dialogue&

@& F&

't tea teaches ches student studentss to preser preser%e %e the integrity integrity of tthe he author.s author.s wor,& 't meas measures ures tr true ue act acting ing s,ills s,ills to $e aa$le $le con con%incin %incingly gly to po portray rtray aan n offensi%e offensi%e part& part&

alancing rules of law and rules of conscience ($ut note that she has a choice here4 she does not need to go into acting as her ma5or)&

istri#t Court ('>>! Fa#iall) neutral  rules that incidentally $urden the free e#ercise of religion are usually upheld&


0onsistency uestion again* :laintiff asserted that the uni%ersity uni%ersity allowed a Mewish student to miss classes and  practices on holy days without penalty& Question: #s art differ different ent than other cont conte3ts? e3ts? (Where the art con%eys the artist.s e#pression" not that of the indi%idual performer&)

0ourt tal,s a$out the need to t o defer to educators (citing  "wing, Horowit(   )& 0omparison is made to law school Horowit(  students $eing forced to articulate articulate other points of %iew& ut compare the language her heree to the Louisiana law clinic case last wee, (and its lac, l ac, of deference)* “he 5udicial deference to educators in their curriculum decisions is no less applica$le in a clinical settingSas in this case with the +:.s practical acting curriculum4 e%aluation in a practical setting Xis Y an Xacademic. 5udgment  $ecause it in%ol%es o$ser%ation of Y s,ill and techniues in actual conditions of practice" rather than assigning a grade to Y written answers on an essay uestion&” (p& J=) 0ourt* 7he is not $eing as,ed to espouse an ideology that is not her own4 she is merely $eing as,ed to engage in e#ercises that foster the understanding and competency necessary to get this t his degree&  6ote comparison to disa$ility cases (where schools can define “essential” elements of programs)Sdistrict programs)Sdistrict court here refused to reuire that uni%ersity students $e allowed e#emptions for religious reasons from certain degree reuirements that offend their $eliefs (whereas other students could not a%ail themsel%es of similar e#emptions)&

>th Cir#uit Court of 2$$eals 9e%ersed the district court.s granting of summary 5udgment to the defendants and remanded the case& 0ourt finds this to $e s#hoolGs$onsored  speech $ecause it. it.ss part of the curricul curriculum um & 0ourt applies the Ha(elwood    framewor," $ut notes the diff difference erence $etween [email protected] and postsecondary postsecondary education $ased on the age" maturity" and sophistication le%el of the students& 7tudents cannot ha%e %eto power o%er the curriculum& ut* 0ourt said there.s a genuine issue of fact regarding whether the school.s real real reason was pedagogical" or religious discrimination %& 3ormons& <efendants must show that the script reuirement was a neutral rule of general applica$ility" or esta$lish that the reuirement was narrowly tailored to ad%ance a compelling interest& (9emem$er e#ception made for Mewish students&)

+cademic freedom (p& =)* +cademic freedom does not constitute a separate right apart from the operation of the 8irst +mendment within the /ni%ersity setting&

3innemeir 54 Indiana U4G6urdue U4 (th 0ir& @>>=) (p& J) 7tate residents tried to%iolated en5oin state from presenting play that allegedly pu$licly endorsed anti20hristian  $eliefs (and therefore 8irstuni%ersity +mendment)&



he play" 4or)us 4hristi" depicts 0hrist as a homose#ual who had se#ual relations with his disciples& he play was to $e presented at a theater on campus that is open to any group that wants to use it" so long as the use would comport with the uni%ersity.s educational mission& he play is $eing put on $y a student (theater ma5or) as  part of his course reuirements& he play$ill includes a dis#laimer from the uni%ersity" saying that the uni%ersity did not select the play or endorse its %iewpoints& Court? *The #ontention that the First 2mendment forbids a state uni5ersit) to $ro5 $ro5ide ide a 5enue for the e"$ression of 5iew antagonisti# to #on5entional Christian beliefs is absurd4+ (What about tea#hing wor-s b) thin-ers su#h as Voltaire. Hume. Hobbes. arwin. ;ar". Freud. Sartre. ohn ewe). et#4N!

A<issent.s response* response* his comparison is misleading& his play is aan n outright attac, on 0hristianity" not 5ust a wor, that calls certain tenets into uestion&B 0ourt* here was no e%idence that the uni%ersity is hostile to 0hristianity& <issent* his ruling opens the floodgates for anti2religious speech of all sorts on ccampus& ampus& he forum was not “pu$lic"” and the speech could easily $e attri$uted to the /ni%ersity&

Uni5ersit) of 0orth Carolina and the 9oran

8ederal 5udge refused to $loc, a reuirement that incoming students at /60 read and discuss a $oo, a$out the oran& he students were told to read the $oo, o%er the summer in preparation for a discussion section" and to complete a one2page assignment $ased on the reading&  6ote* he students were allowed to opt out of the discussion $y writing a one2page essay e#plaining their o$5ections to the assignment& Question: Was this o)t2out neces necessar$? sar$?

a5e) 54 3o#-e (Jth 0ir& @>>@) (p& >) 0ollege student sued go%ernor and other state officials" alleging that a state law prohi$iting state aid to any  postsecondary student pursuing a degree in theology %iolates the free e#ercise e#ercise clause&

he student otherwise ualified for a state st ate “:romise 7cholarship” $y %irtue of grades" income" and attendance at an accredited college in the stateS$ut he lost the scholarship when he declared a ma%or in :astoral 3inistries at  6orthwest 0ollege" a church2affiliated college& He was actually a dou$le2ma5or with his other ma5or $eing usiness 3anagement and +dministration& His choices were to change change his ma5or" switch institutions" or gi%e up the money& money& ut 6orthwest students who had not yet declared a ma5or could use a state scholarship to enroll in the same courses as 3r& <a%ey& 0lasses in the 6orthwest 0ollege :astoral 3inistries ma5or were taught from the point of %iew that the i$le represents truth and is foundational (not same approach as theology courses at pu$lic postsecondary institutions in W+" which are taught from an historical and scholarly point of %iew)&  6ote that the scholarship goes directly to students4 no state money goes directly to any sectarian school& he  proceeds could $e used for any education2related e#pense e#pense (including food and housing" e&g&)&

<th Cir#uit?


he policy lac,s neutrality on its face& he classification facially discriminates on the $asis of religion" and therefore must sur%i%e stri#t s#rutin) & he go%ernment is not the spea,er spea,er here in choosing his ma5or& hus" administration of the scholars scholarship hip must $e 5iew$oint neutral (remem$er osenerger    and the /ni%ersity of Cirginia.s failure to fund a 0hristian pu$lication )& “he $ottom line is that the go%ernment may limit limi t the scope of a program that it will fund" $ut once it opens a neutral “forum” (fiscal (fiscal or physical)" with secular criteria" the $enefits $enefits may not $e denied on ac account count of religion&” (p& =G) 1eorgetown Uni5ersit) (Resear#h Using 2borted Fetal Cells! (4hronicle article)

he uni%ersity decided that the scientists could continue to wor, with cells that came from a$orted fetuses " $ecause they did not ,now the original source of the cells" and $ecause the wor, could lead to potentially lifesa%ing studies (or ris, losing grants)& 7ome of the in%ol%ed cell lines had $een around for nearly > years& 0hurch leaders essentially employed a $alancing test& 0ongress is worried that at /23 and other campuses" federal dollars meant for 3iddle Eastern studies (earmar,ed for such programs after J-==) are actually ad%ancing ad%ancing an anti2+merican" anti2'sraeli agenda& he hope had $een that such programs help train more +ra$ic translators t ranslators and analysts whose shortage contri$uted to the intelligence failures prior towould the attac,s& ut now some groups (including the t he +merican Mewish 0ouncil) say the uni%ersities are using go%ernment funds to hire professors ,nown for their anti2/7 animus& 7ome faculty supposedly also discourage +ra$ studies students from wor,ing for the defense and intelligence i ntelligence ser%ices& he House %oted to create a commission comm ission to monitor classroom content (to ensure that these programs “reflect di%erse perspecti%es and a full range of %iews”) and has urged the 7enate to do the same&

Question: What do $ou think of this a))roach? 'hould the government have this right? appropriate purpose" the go%ernment can cut the funding (that.s a  Detroit 1ews 1ews* 'f the programs aren.t ser%ing the appropriate  $etter solution than federal snoops in the classroom)&

Cardinal 0ewman So#iet) and *Vagina ;onologues+

0atholic ad%ocacy group sponsored a full2page ad in some editions edit ions of /7+ oday as part of its continuing campaign to stop the staging of the play he Cagina 3onologues at 0atholic colleges& he play is scheduled to $e performed at a$out F> 0atholic col colleges leges this year& ut the 0ardinal 6ewman 7ociety (which descri$es as dedicated to “renewing 0atholic identity at +merica.s 0atholic coll colleges eges and uni%ersities”) says its efforts ha%e resulted in the play.s cancellation at =G other 0atholic institutions& 'n all" students at some >> colleges are planning to perform the play (cele$rating women.s se#uality and strength" and e#posing the %iolations that women endure) this year&




:rimary laws that protect students (we.ll focus on students today4 don.t forget that faculty and staff are also  protected under discrimination statutes applica$le to employees)*

Se#tion =>8 of the Rehabilitation 2#t of <J/ <J / (7ection >) Li,e itle C' and itle 'D" this statute applies to all colleges and uni%ersities that recei%e federal financial assistance&

2meri#ans with isabilities 2#t (22! of <<>   +pplies to three primary groups (employers" go%ernment entities entiti es such as state uni%ersities" and pri%ate entities that ser%e the pu$lic)& he statutes prohi$it discrimination against indi%iduals with current disa$ilities" indi%iduals $elie%ed to $e (“regarded as”) disa$led" and indi%iduals with a record of a disa$ility& Question: What is a disa)ility?

+ physical or mental im$ im$air airment ment that subs substant tantial iall) l) limits a ma%or life a#ti5i a#ti5it) t)& hese statutes reuire that students with disa$ilities ha%e eual access to information and to the a%enues of communication (e&g&" we$ sites" distance education resources" etc&) 7tuden ts are e#pected 7tudents e#pect ed to meet the “ essential ”  ” “academic” and “technical” standards of the college or uni%ersity" with our without reasonab reasonable le a##ommodation a##ommo dationss& :ersons whose disa$ilities manifest a “direct threat” t hreat” to the health and safety of themsel%es or others may $e e#cluded from an educational program& Question: What is a reasona)le acco accommodation? mmodation?

/ni%ersities must pro%ide “reasona$le accommodations” (“academic ad5ustments and reasona$le modifications"” “au#iliary aids and ser%ices”) to students with disa$ilities to allow them to participate fully in educational programs and acti%ities& 2#ademi# ad%ustments?  classroom and test testing ing modifications (e&g&" e#tra time on e#aminations4 moderately reduced course loads" limited lea%es of a$sence" classroom modifications) 2u"iliar) aids and ser5i#es?  practices that create access access to information for persons with sensory impairments (e&g&" signers or readers)

9easons why schools can deny reuests for accommodations* =&

'f it repre represents sents a fund fundamenta amentall alteratio alteration n in the nature of the aacadem cademic ic progr program am (e&g&" e#cusing e#cusing students students from la$oratory reuirements)&


'f a less costly $ut effec effecti%e ti%e alterna alternati%e ti%e is a%aila a%aila$le& $le&


'nsti 'nstitution tution ne need ed not incur incur an undue eeconomi conomicc or admini administrati strati%e %e $urden $urden in acco accommodat mmodating ing students students with disa$ilities


't need no nott $ear the e#pens e#pensee of per personal sonal se ser%ice r%icess ($ut it mus mustt allow stud students ents to use use personal personal attendants attendants when needed)& Question: What is an 0e 0essential1 ssential1 academic or tec technical hnical standard?


'ssue of how much deferen#e  schools will get – an educational 5udgment (note eearlier arlier discussions a$out deference to educational 5udgments $y courts)& Oou earn deference if y you ou ha%e thorough" well2 documented" consistently applied policies and procedures in place&

  't helps if schools ha%e well2de%eloped" well 2de%eloped" interacti%e procedures for considering and implementing reuests (and properly trained and ualified indi%iduals to t o re%iew reuests)& T 'ncreased attention to issues related to indi%iduals with disa$ilities has forced schools to identify what is really essential %& what is simply con%enient or traditional (similar to re%isiting tenure and promotion reuirements in light of discrimination issues related to race" gender" etc&)& The Intera#ti5e 6ro#ess

 6ote that students at the postsecondary le%el should identify that they need help (see 4hronicle article)S  and institutions need to ma,e clear how they can reuest such help (e&g&" to whom can they go to reuest accommodations)& 7tudents ordinarily then document that they ha%e a disa$ility and need an accommodation (documentation may need to $e periodically updated" depending on the nature of the disa$ility)& 7tudents $ear the costs of o$taining documentation& 3any difficult cases arise in clinical settings" especially in health and medical fields& 0ertain types of disa$ilities also lead to disputes and litigation (e&g&" +<H<" learning disorders and other types of mental disorders" chronic fatigue syndrome)& his is an area where precedents will not $e cast in stone* 'ndi%idual circumstances and disa$ilities differ& echnology can change what.s possi$le o%er time& TTTTTTTTTTTT Writing Question: You are asked )y yyour our university2s medical school to clarify the 'olicy and  'rocedures for considering re3uests for various various accommodations $including re3uests for e/em'tions  from some 'rogram re3uirements& from students (ith disa)ilities. What (ould you recommend4 and (hy?  (3eredith 3ira" 7arah :lantinga" +my 9adon" 7andy orteso5a)  · · ·


'dentifying essential program reuirements %& other" non2essential elements :ay attention to accreditation reuirements and other e#ternal standards 9esponsi$ility for disclosure of disa$ility" and to whom (remem$er that “magic words” are not reuired in such disclosures) +nalysis of types of accommodations a%aila$le on an indi%idualiKed $asis

Southeastern Communit) College 54 a5is (<J< !  (p& @) Su$reme Court? College did not ha5e to dis$ense with need for effe#ti5e effe#ti5e oral #ommuni#ation in the #ollegeAs nursing $rogram so that student with a bilateral. sensoriGneural hearing loss #ould be in#luded in that $rogram4 (Whether or not li#ensure li#ensure reBuirements #all for #ertain #ertain s-ills. the institution does not ha5e to lower its a#ademi# standards4! st

W)nne 54 Tufts Uni5ersit) S#hool of ;edi#ine  (=  0ir& =JJ=) (p& @)



There was an issue of fa#t as to whether a medi#al student with d)sle"ia was *otherwise Bualified+ (an [email protected] inBuir)!&

1u#-enberger 54 &oston Uni5ersit) (4 ;ass4 <<J! (p& G) 0lass action $y students with attention deficit hyperacti%ity disorder (+<H<)&

=& @& F&

+llegations of disa$ility discrimination* Esta$l Esta$lishing ishing unreaso unreasona$le na$le"" o%erly o%erly2$urde 2$urdensome nsome eligi$ility eligi$ility cri criteria teria for u ualify alifying ing as a disa$led disa$led student 8ailing tto o pro%ide pro%ide reas reasona$le ona$le p proce rocedures dures for for e%alu e%aluation ation an and d re%ie re%iew w of a student.s student.s reuest reuest for for accommodations 'nsti 'nstituting tuting an acr across2t oss2the2$o he2$oard ard polic policy y preclu precluding ding cour course se su$st su$stitutions itutions in fforeig oreign n language language and mathematics mathematics Court e"amined the 5arious $ro#esses in $la#e. noted that #ourse substitution in foreign language for students with demonstrated language disabilities was reasonable modifi#ation but #ourse substitution in math for students suffering from d)s#al#ulia was not reasonable modifi#ation& T 0ourse su$stitution 5udgments need to $e made carefully and $y appropriate authorities&

Other 2reas What a$out athleti# programs and teams for students with disa$ilities? (see 4hronicle article)

Writing uestion* Oou are as,ed to de%elop a policy for your uni%ersity on the timing and criteria for tenure consideration for faculty with disa$ilities who as, for %arious types of accommodations& What would you recommend" and why? $Erick "ng4 %ourtni 5olnar4 6isa 7u8man&

 Some !ssues to %onsider: ·

· · · · ·

'dentifying essential functions of the 5o$ (teaching" research" ser%ice – $ut how much latitude is there in each of these categories to meet the t he reuirements in a %ariety of ways?) When disa$ilities are disclosed" and to whom +ppeals mechanism 9educed courseload-wor,load 1ther types of accommodations 8airness to other groups on the tenure cloc, (e&g&" faculty with young children) I0 THE 0EWS? 0EWS? RE3I1IO0 20 HI1HER EUC2TIO0

a5e) 54 3o#-e – 7upreme 0ourt <ecision Su$reme Court (in a JG' de#ision authored b) Chief usti#e RehnBuist! held that W2As e"#lusion of the $ursuit of a de5otional theolog) degree from its otherwiseGin#lusi5e s#holarshi$ aid $rogram does not 5iolate the Free E"er#ise Clause4

his case in%ol%es the “play in the 5oints” $etween the Esta$lishment and 8ree 8ree E#ercise 0lauses& hat is" it concerns state action that is permitted $y the former $ut not reuired $y the latter& he 7tate has merely chosen chosen not to fund a distinct category of instruction& he W+ 0onstitution is more stringent stringent than the federal 0onstitution& he 0ourt notes that early state constitutions e#plicitly e#cluded only the ministry from recei%ing state dollars" thus reinforcing the conclusion that religious instruction is of a different il, from ot other her professions&


he 7tate has not $een hostile hostile to religion here* he :romise 7cholarship :rogram :rogram goes a long way toward including including religion in its $enefits" since it permits students to attend per%asi%ely religious schools so long as they are accredited" and students are still eligi$le to ta,e de%otional theology courses under the program.s current guidelines&

SEU23 20 R2CI23 H2R2SS;E0T 2C2E;IC FREEO; 20 ISCRI;I02TIO0 32W

ey uestion for academic freedom and racial or se#ual harassment* What is the mission  of an institution of higher education? How does that mission differ from other conte#ts (e&g&" [email protected] education" other employment settings)? E#posure to the mar-et$l mar-et$la#e a#e of ideas 2 e%en unpopular or contro%ersial ideas that some students might find offensi%e" repugnant" or that otherwise challenge their assumptions and $eliefs ut the en%ironment must $e conduci%e to learning& FIRST 2;E0;E0T 2 7ome core principles* 8irst +mendment protects e#pression in a %ariety of forms * Cer$al and written communication ;raphic representations ·

• • • • •

<igital media" we$ pages and e2mail 0omputer code +rt 7ym$olic speech (e&g&" flag2$urning" wearing an arm$and) 9estrictions on the content or %iewpoint of e#pression are generally prohi$ited &

Z 7ome historic e#ceptions e#ceptions e#ist ((e&g&" e&g&" fighting words" defamation" o$scenity) – $ut see see .-.5   . ($elow) Z <octrines of 5agueness  and o5erbreadth  ([reasona ([reasona$le $le person[ standard) Z ContentG ContentGneutral neutral time. $l $la#e a#e and manner regulati regulations ons may $e permissi$le & •

0ontent2neutral restrictions on #ondu#t (rather than the #ontent of s$ee#h!  that incidentally sweep in some speech may $e constitutional (e&g&" discrimination statutes" laws against treason" etc&)&

R424V4 54 Cit) of St4 6aul4 ;0  ([email protected]) •

0ontent2$ased restrictions on free speech can $e $oth under and o5erGin#lusi5e & 0ity hate crime ordinance $anned e#pression that would reasona$ly arouse [anger" alarm" or resentment in others[ $ased on characteristics such as race or gender& Oou might $e a$le to $an all fighting words" $ut not 5ust certain ones $ased on race" gender" etc &




Question: What aout the discrimination statutes like 6itle 5# or 6itle 5##? Wh$ are the$ constitutional?

7ome %iolations of discrimination laws l aws co%er seemingly e#pressi%e $eha%ior" and can $e purely %er$al in in nature (e&g&" [7leep with me" and you\ll get an + in my class&”)& Condu#t 54 #ontent of s$ee#h distin#tion

Question: What is the harm? (9elate to what are the benefits $eing protected $y the discrimination statutes" and in what particular conte#ts&)

Z here must $e a limitation or denial of an educational $enef $enefit" it" or participation in an educational program or acti%ity& •

What are those $enefits in the educational conte#t? (9ights to learn" to participate in your own education" to $e e#posed to a %ariety of points of %iew" etc&)

 6ote the /&7& <epartment of Education.s policy guidance de%elopment on racial and se#ual harassment Forms of harassment and dis#rimination


ifferent treatment (e&g&" differential grading $ased on race)


Muid $ro Buo se"ual harassment  


Hostile en5ironment 


Reasonable $erson standard ([similarly situated[ 2 e&g&" reasona$le woman of same age" etc&)

E#&* 0le%eland 7tate-student in outside practicum at counseling center (see pp& GFJ2>) Question: What is reasonale in that setting?


Totalit) of the #ir#umstan#es 22 time" place" who is in%ol%ed" power relationships" etc&

 6ote unwel#omeness  reuirement for se#ual harassment4 no real parallel in racial harassment TTTTTTTTTT


W9''6; /E7'16* 'n response to a series of racial incidents on your campus" you are as,ed to consider de%elopment of a policy on hate speech for your uni%ersity& What are some issues you would consider" and recommendations you would ma,e? 7&essica +itchell, 4ollin /oulds, &oe Wong, 8ate 9oc(ik, +ario Weer, 4harles Lord, Dao 1go  


oe 54 Uni5ersit) of ;i#higan  (=JJ>) (p& GF)  6ote what the policy prohi$ited (see" e&g&" pp& GG" GI* [Oou are a harasser when&&&[)  6ote pri%acy protection for the student plaintiff (p& G" n&=) Lists of magic words are clearly unconstitutional4 same for restrictions on 5o,es" innuendo" etc& :ro$lems with %agueness (e&g&" terms li,e li ,e “stigmatiKe” and “%ictimiKe”) and o%er$readth (the policy was applied to statements in the classroom and research conte#ts" e&g&) TTTTTTTTT 1ne solution* 8ight offensi%e speech with more speech& What does that mean from the perspecti%e of the institution-its administration? 0an they do so? (e&g&" if a campus spea,er offends many students)  6ote current challenges from the 8oundation for 'ndi%idual 9ights (8'9E) (e&g&" 7hippens$erg /& in :+" 0itrus 0ollege in 0+) 7ee recommendations on pp& [email protected] et se&* =& rac, the anti2discrimination laws4 recogniKe the different types of $enefits at sta,e in different educational conte#ts @& +rticulate %alues of tolerance and ci%ility (non2enforcea$le [%ision statements[ are 1) F& /se other content2neutral regulations to limit disrupti%e $eha%ior and e#pression S;233 1ROU6 ISCUSSIO0? RETRO U0IVERSIT7

W9''6; /E7'16*  #n res)onse to com)laints com)laints from 1ative -merican -merican students aout aout a hostile env environment ironment on cam)us, $ou are asked to review $our universit$s use of the nickname ;edskins,< along with its mascot, logo, etc. 7yl%ia Lee" What are some of the issues issues $ou would consider, and )ossi )ossile le recommendati recommendations ons $ou would make? 7 7yl%ia Mustin 7olomon" <a%id +llen" Linda 7amples" Menna ;olden$erg" 0hristopher 7hults" 0hris Mensen" Erica ennyson" 7arah ar$er" +ndy ;rewal" Cineeta 3aha5an) 7ee /ni%ersity of 'llinois letter of findings from 109 (p& GF) – offensi%eness alone is not enough to esta$lish a itle C' %iolation (the fact that indi%iduals were offended does not pro%e the case $y itself)&  1ote e3am)les e3am)les of other ethnic mascots 7/igh 7/ighting ting #rish, 'em 'eminoles inoles 22 wh$ wh$ are some different? different? SEU23 H2R2SS;E0T 20 2C2E;IC FREEO;

7ome special issues to consider* Z Z


EBualGo$$ortunit) harassment (e&g&" faculty mem$er who flirts with $oth se#es" or demeans  $oth se#es) SameGse" harassment (7upreme 0ourt says it may $e co%ered4 discrimination [on the $asis of” gender or race)4 note disa$ility case law on discrimination $ased on an association with someone else& Se"ual orientation harassment (not co%ered $y federal law" $ut $y some state and local laws and many uni%ersity policies) 0onGse"ual. se" based #ondu#t (it may $e discrimination" $ut not [se#ual[ in nature)



's it a systemic pro$lem in higher education? (7ee article regarding ac accusations cusations against Harold loom at Oale $y 6aomi Wolf" a noted feminist&) •

How should Oale /ni%ersity /ni%ersity respond? (0ourtni 3olnar response on 0our 0oursetools* setools* E#amine your grie%ance grie%ance  procedures4 $e sure students and others ha%e an a%enue a%enue for complaints&) •

:ro%ost issued an open letter descri$ing their grie%ance procedures&

Institutional 3iabilit) (see p& G=)

Title VII  ([terms and conditions of employment[) employme nt[) (direct discrimination discriminati on statute) Employer is su$5ect to %icarious lia$ility to an employee for a hostile en%ironment created $y a super%isor (or successi%ely higher) authority&

7trict lia$ility when the harassment culminates in a tangi$le employment action (discharge" demotion" etc&)

'f no tangi$le employment action" employer can defend itself $y showing that it too, reasona$le care to  pre%ent harassment" and that plaintiff unreasona$ly failed to ta,e ad%antage of any pre%enti%e or correcti%e opportunities&

Title I  (educational $enefits4 participation in educational educational programs and acti acti%ities) %ities) (contractual model 2 schools agree to try to correct harassment after they $ecome aware of it) 7chools are lia$le for damages for se#ual harassment only when a high2le%el official recei%es actual notice of " and is indifferent to" the misconduct

7chools can $e lia$le for student2on2student harassment under similar simil ar circumstances&


9emem$er academic freedom statements for faculty and students (9';H7 ] 9E7:167''L''E7)  6ote other methods to regulate conduct $esides discrimination statutes (e&g&" ethical standards4 professional norms for pedagogy4 content2neutral time" place and manner regulations) ISCUSSIO0 OF H76OTHETIC23S? H2R2SS;E0T OR 2C2E;IC FREEO;N

E#&* :rofessor 0ohen (p& GG=" see facts on [email protected]) :rofessor 0ohen taught a remedial English class which was a prereuisite to other college2 le%el English classes& He often focused on topics of a se#ual nature and used profanity and %ulgarities" and assigned pro%ocati%e reading and writing assignments& He was punished for his teaching methods" e%en though he had used the same teaching style for many years (notice issue)& He was as,ed to pro%ide a sylla$us for the course descri$ing his teaching style" purpose" content" etc& (other faculty were not su$5ect to this reuirement)& He was also told to attend a se#ual harassment seminar and to $ecome sensiti%e to the needs and $ac,grounds of his students& he court held that the policy was too %ague as applied in his case&

9acially Hostile En%ironment? E#&2 !eorge +ason 'chool of Law  (p& GG) (torts class hypo on Mews marching in 7,o,ie" then modified to  in i n an +frican2+merican neigh$orhood) E#&* !ee" 8lorida +3 (comment to students" [hat ,ind of thin,ing will ,eep you on the $ac, of the •


 $us fore%er&[)


+pril @F" @>> onathan 2lger and onna Sn)der

1n Mune @F" @>>F" the /&7& 7upreme 0ourt issued its decisions in two challenges to the consideration of race as one of many factors in the t he admissions process at the /ni%ersity of 3ichigan* !rutter v. %ollinger et al.  (Law 7chool) and !rat( v. %ollinger et al. (undergraduate 0ollege of Literature" Literature" 7cience" and the +rts)& he 0ourt made clear that race is one of many factors that can contri$ute to a di%erse student $ody that produces educational  $enefits for all students" and further held that the way in which race is considered and weighed as a factor must not  $e rigid or mechanical& 'n light of the 0ourt.s guidance" uni%ersities around the country ha%e $een re%iewing their  policies and procedures with regard to admissions as well as financial aid" recruiting" outreach" and retention  programs in which race is a factor& his outline will include a summary of the decisions themsel%es" followed $y analysis of their impact on these respecti%e areas* admissions" financial aid" and recru recruiting-outreach-retention& iting-outreach-retention& he 0ourt.s decisions indicate that race can $e considered as a factor under some circumstancesSnot that it must $e& 'n some states (suc (such h as 0alifornia and Washington)" leg legal al constraints that prohi$it the consideration of race in admissions and other areas remain in force& hus" in e%aluating the consideration of race in %arious types of  programs" it is important to $e aware of any rele%ant constraints under state as well as federal law& I4

Summar) o off Su Su$reme C Co ourt e e#isions? 7rutter v. 9ollinger et al. (3aw S#hool!. and 7rat8 et al. v. 9ollinger et al. (College  (College of 3iterature. S#ien#e. and the 2rts!

1%er%iew 1n Mune @F" @>>F" the /&7& 7upreme 0ourt held in !rutter v. %ollinger et al. that di%ersity is a compelling interest in higher education" and that t hat race is one of a num$er of factors that can $e ta,en int into o account to achie%e the educational $enefits of a di%erse di%erse student $ody& he 0ourt found that the indi%idualiKed" whole2file re%iew re%iew used in the /ni%ersity of 3ichigan Law 7chool.s admissions process is narrowly tailored to achie%e the educational $enefits of di%ersity& he 0ourt also held that the L Law aw 7chool.s goal of attaining a critical mass of underrepresented underrepresented minority students does not transform transform its program into a uota& 'n !rat( et al. v. %ollinger et al. " the 0ourt held that while race is one of a num$er of factors that can $e considered in undergraduate admissions" the automatic distri$ution of twenty (@>) points to students from underrepresented minority groups is not narrowly tailored& 3a5ority 3a5orit y 1pi 1pinion nion ( !rutter v. %ollinger et al.  )) 'n an opinion $y Mustice 1.0onnor (5oined $y Mustices 7te%ens" 7outer" ;ins$urg" and reyer)" the 0ourt e#plicitly adopted Mustice :owell.s %iew from egents of the the 0niversit$ of 4aliforni 4alifornia a v. %akke (=JI)" finding that “student $ody di%ersity is a compelling compelling state interest that can 5ustify the use of race in uni%ersity admissions&” 't noted that pu$lic and pri%ate uni%ersities across the nation ha%e modeled their admissions programs on the %iews articulated $y Mustice :owell in %akke" and it reiterated that race “.is only one element in a range of factors a uni%ersity properly may consider in attaining the goal of a heterogeneous student $ody&.” he 0ourt stated that “AaBlthough all go%ernment uses of race are su$5ect to strict scrutiny" not all are in%alidated $y it"” and that “conte#t matters” when re%iewing programs in which rac racee is ta,en into account& he 0ourt re5ected the assertion that “the only go%ernmental use of race that can sur%i%e strict scrutiny is remedying past discrimination&” 't recogniKed that “uni%ersities occupy occupy a special niche in our constitutional constitutional tradition"” and deferred



to the /ni%ersity of 3ichigan Law 7chool.s good faith educational 5udgment that di%ersity is essential to its institutional mission& he 0ourt found that the educational $enefits of di%ersity “are not theoretical $ut real"” and had $een su$stantiated $y the /ni%ersity and its amici in supporting supporting $riefs& hose $enefits include [cross2racial [cross2racial understanding” and the $rea,ing down of racial stereotypes& he 0ourt cited social science research showing that “student $ody di%ersity promotes learning outcomes" Y $etter prepares students for an increasingly di%erse wor,force and society" and $etter prepares them as professionals&” professionals&” 't ac,nowledged that “ma5or +merican  $usinesses ha%e made clear that the s,ills needed in today.s increasingly glo$al mar,etplace can only $e de%eloped through e#posure to widely di%erse people" cultures" ideas" and %iewpoints"” and that high2ran,ing former military leaders ha%e asserted asserted that “a highly ualified" racially di%erse of officer ficer corps” is essential to na national tional security& 8inally" the 0ourt noted that di%ersity is particularly important in the law school conte#t $ecause law schools [represent the training ground for a large num$er of our 6ation\s leaders&[ he 0ourt concluded that “AeBffecti%e participation $y mem$ers of all racial and ethnic groups in the ci%ic life of our 6ation is essential if the dream of one 6ation" indi%isi$le" is to $e realiKed&” he 0ourt ne#t found that the Law 7chool\s admissions program is narrowly tailored to achie%e its compelling interest& he 0ourt held that uni%ersities may consider consider race or ethnicity as a “plus” factor in the conte#t of indi%idualiKed re%iew of each applicant" and that admissions programs must $e “.fle#i$le enough to consider all  pertinent elements of di%ersity in light of the particular ualifications of each applicant&.” 'nstitutions may not" howe%er" “esta$lish uotas for mem$ers of certain racial groups or put mem$ers of those groups on separate admissions trac,s&” he Law 7chool policy meets all of these these reuirementsSit is “a highly indi%idualiKed" holistic re%iew of each applicant.s file" gi%ing serious consideration to all the ways an applicant might contri$ute to a di%erse educational en%ironment&” he 0ourt defined a uota as a “program in which a certain num$er or proportion of opportunities are Xreser%ed e#clusi%ely for certain minority groups"” and held that “AtBhe Law 7chool.s goal of attaining a critical mass of underrepresented underrepresented minority students does not transform transform its program into a uo uota&” ta&” 0iting  %akke" the 0ourt stated that “.some attention to num$ers". without more" does not transform a fle#i$le admissions system into a rigid uota&” he 0ourt went on to t o hold that “AnBarrow tailoring does not reuire e#haustion of e%ery concei%a$le race2 neutral alternati%e"” and that a uni%ersity need not choose $etween commitments to e#cellence and to a di%erse student $ody& 'nstitutions must gi%e “serious" good faith faith consideration” to wor,a$le race2neutral race2neutral alternati%es to achie%e these o$5ecti%es" $ut the 0ourt 0ourt indicated that the Law 7chool had adeuately adeuately done so& he 0ourt noted that  percentage plans that guarantee admission to all students a$o%e a certain class2ran, threshold in e%ery high scho school ol in a stateSthe alternati%e suggested in the federal go%ernment.s $riefSmay not wor, for graduate and professional schools" and may preclude the indi%idualiKed re%iew of applicants necessary to achie%e di%ersity along all the ualities %alued $y the uni%ersity& he $ecause 0ourt held the Law 7chool fle#i$le admissions program does notwould unduly harm mem$ers of any racial group" all that applicants ha%e the opportunity to demonstrate how they contri$ute to the di%ersity of the entering class& 8inally" the 0ourt held that “race2conscious admissions policies must $e limited in time"” and that uni%ersities should consider sunset pro%isions and periodic re%iews for such such programs& 't concluded with an e#pectation that" @ years from now" such programs will no longer $e necessary&

;a%orit) O$ini O$inion on ((7rat8 7rat8 et al. v. 9ollinger et al. !  !

'n an opinion $y 0hief Mustice 9ehnuist (5oined $y Mustices 1.0onnor" 7calia" ennedy" and homas)" the 0ourt reiterated its holding from the !rutter    decision that di%ersity is a compelling state intere interest st that can 5ustify the consideration of race as a plus factor in uni%er uni%ersity sity admissions& 't found" howe%er" that the automatic distri$ution of twenty (@>) points to students from underrepresented minority groups is not narrowly tailored to achie%e this  purpose&


he 0ourt emphasiKed the importance of indi%idualiKed re%iew to assess all of the ualities each applicant might contri$ute to the di%ersity of the entering entering class& 't ruled that the admissions proc process ess of the 0ollege of Literature" 7cience" and the +rts did not meet this standard insofar as @> (out of => total possi$le) points were automatically awarded to all applicants from underrepresented minority groups" without further consideration of their other indi%idual attri$utes& he 0ourt concluded that this automatic distri$ution of @> points has the effe effect ct of ma,ing race a decisi%e factor factor for “%irtually e%ery minimally ualified under underrepresented represented minority applicant&” he fact that certain files are flagged for further indi%idualiKed i ndi%idualiKed consideration $y a committee was w as not deemed sufficient to meet the narrow tailoring tail oring standard" $ecause such re%iews were found to $e “the e#ception and not the rule” and  $ecause they occur only after the points are distri$uted& 8inally" the 0ourt held that “the fact that the implementation of a program capa$le of pro%iding indi%idualiKed consideration might present administrati%e challenges does not render constitutional an otherwise  pro$lematic system&” he case was remanded to the federal district court for further proce proceedings edings consistent with this opinion& 1ther 1pinions 'n addition to the controlling ma5ority opinions" a num$er of other concurring and dissenting opinions were filed& Mustice ennedy agreed with the rule articulated $y Mustice :owell in %akke that race is one of a num$er of factors that can $e ta,en into account $y uni%ersities in the admissions process" $ut disagreed with the application of the rule in the Law 7chool case& case& Mustices 7calia and homas we were re the only mem$ers of the 0ourt who e#plicitly disagreed with the ma5ority.s holding that the educational $enefits of a di%erse student $ody constitute a compelling interest& II4

2dmissions 6oli#ies and 6ro#edures

/ni%ersities around the country ha%e $een analyKing their admissions policies at the undergraduate and graduate school le%els in light of the decisions in the 3ichigan cases& 7ome of the rele%ant factors to consider in such re%iews include the following* Mustification-0ompelling 'nterest Is ra#e or ethni#it) a fa#tor in the admissions $oli#) or $ro#essN If so. what $ur$ose is it ser5ing (e4g4. a #om$elling interest in a di5erse student student bod)!N Has this $ur$ose been ar arti#ulated ti#ulated somewhere (e4g4. in a mission statement for the uni5ersit). admissions $rogram. et#4!N ·


he legal 5ustification for the consideration of race should $e articulated somewhere (e&g&" in order to achie%e a di%erse student $ody)" and tied to the institution.s educational mission and o$5ecti%es& he 0ourt did not foreclose the possi$ility of other interests that might $e “compelling” so as to 5ustify the consideration of race& he two interests e#plicitly recogniKed to date date include achie%ing the educational  $enefits of a di%erse student $ody" and remedying the present effects of past discrimination (+ O1/9 1W6 '67'/'16& he latter interest applies only to remedying remedying present effects of p past ast discrimination at your own institution" howe%er& he 7upreme 0ourt has made made clear that societal discrimination alone cannot $e used as the $asis to t o 5ustify the consideration of race in admissions&

How were the edu#ational %udgments made to determine the $ur$ose of the $oli#) and the #riteria #onsidered for admissionN To what e"tent were ffa#ult) a#ult) members in5ol5ed in the $ro#essN $ro#essN ·

he 0ourt indicated that courts owe some deference to educational 5udgments a$out who may $e admitted to studySfundamentally" these are educational educational rather than legal 5udgments& 'nstitutions will want to $e a$le to demonstrate that admissions criteria are $ased on sound educational 5udgments (especially where the consideration of race is in%ol%ed)" and not mere administrati%e con%enience&



What ,inds of research or e%idence (institution2specific as well as national) support the stated rationale for the  program?


't is helpful to ha%e institution2specific (as well as national) research" data" or testimony (e&g&" in the form of considered educational 5udgment $y a faculty committee" faculty and-or student sur%eys" etc&) to demonstrate why di%ersity is important to the educational e#perience and mission of your particular institution&

0arrow Tailoring

's the re%iew process indi%idualiKed and holistic for each applicant? ·



't is especially helpful to include opportunities for applicants to $ring out a wide range of attri$utes through essays" personal statements" teacher and counselor recommendations" etc& +ll students should $e competing against the entire pool & 0andidates should not $e separated (%ia different committees or processes) $ased on race& 0andidates should not $e automatically admitted $ased on a “soft” (non2uantitati%e) %aria$le such as race&

What factors are considered that relate to di%ersity" aside from race and national origin? ·

+s the 7upreme 0ourt indicated" a wide %ariety %ariety of factors should $e considered& considered& 't is helpful to $e a$le to demonstrate that ma5ority applicants also $enefit from consideration of this full range of factors&

How is race considered – e&g&" how is it weighted in the process? 8or what racial and ethnic groups groups is race considered a “plus” factor" and why are those groups chosen (and not others)? ·


9ace should shoul d not $e the predom predominant inant fac factor tor " and should not $e assigned a weight or score in a mechanistic or automatic way& he institution should ha%e a consistent and coherent rationale for the groups that recei%e consideration of race as a plus factor" as well as for e#cluding others (e&g&" $ased on its i ts applicant pool" ser%ice area demographics" mission" etc&)& How would ra#e be #onsidered with regard to students of *mi"ed ra#e+N


he fle#i$ility and indi%idualiKed re%iew reuired $y the 7upreme 0ourt can $e helpful in dealing with issues of mi#ed race&

+re cut2off scores (for grade2point a%erages or standardiKed test scores) used to ma,e automatic decisions at either end of the spectrum to admit admit or re5ect applicants? 'f so" what is the rationale for those cut2off scores? scores? +re they consistently applied" or are e#ceptions sometimes made? o what e#tent are they used" and how does the profile of the students admitted in this fashion (e&g&" considering race and other factors) compare with the profile of students admitted through other means? ·

he decisions do not categorically e#clude the use of cut2off scores& he use of such scores for some  portion of the class could $e seen" howe%er" as undermining an institution.s argument that it is using holistic" indi%idualiKed re%iew for e%ery applicant $ecause it cares a$out the full range of factors that contri$ute to a di%erse student $ody& $ody& +nother possi$le approach approach is to ha%e presumpti%e range rangess in mind without a$solute cut2offs (while re%iewing each file in its totality)" and to ha%e more intensi%e re%iew of applicants “at the margins&”



here should not $e different cut2off scores for %arious groups $ased on race &

<oes the institution ha%e a guiding principle-target for the enrollment of minority students? ·

9igid uotas or set2asides in admissions $ased on race are illegal& he pursuit of a critical mass as a fle#i$le" educationally2$ased goal was upheld upheld $y the 7upreme 0ourt" howe%er& howe%er& hus" some attention to num$ers is permissi$le" $ut specific numerical num erical targets (as well as “racial $alancing” to reflect the e#act  percentages of %arious groups in the population at large) should $e a%oided&

Ha%e race2neutral alternati%es $een studied and considered? considered? 'f they ha%e $een considered and re5ected" are such deli$erations documented in some fashion? ·


he 0ourt did not reuire that institutions try and fail in implementing all such alternati%es $efore considering race as a factor& 'nstitutions should" howe%er" $e a$le to demonstrate demonstrate that such alternati%es would not produce the same le%el of racial di%ersity they see, without compromising other institutional goals and %alues& 'nstitutions are not reuired to sacrifice academic e#cellence or other educational goals in order to achie%e race neutrality&

<oes the policy include periodic ree#amination" and-or a sunset pro%ision" in light of changes in the structure and composition of the applicant pool? ·

't is a good idea to indicate e#plicitly in policies that they will $e re%iewed periodically (prefera$ly on an annual $asis)&

How does the consideration of race affect the chances of admission of students for whom race is not a “plus” factor? What are the relati%e admit rates of students from %arious racial and ethnic groups? ·


he smaller the $urden imposed on non2minority students $y the consideration of race" tthe he more li,ely a  program will $e found to $e narrowly tailored& Ra#eGTargeted Finan#ial 2id

+s in admissions" the consideration of race or national origin in the awarding of financial aid is also su$5ect to strict scrutiny& 'n =JJ" after a long process process in%ol%ing pu$lic notice and comment" the /&7& <epa <epartment rtment of Education issued final policy guidance setting forth the circumstances under which race2targeted financial aid is  permissi$le under itle C' as interpreted $y the federal go%ernment& 'ee J 8ed& 9eg& 9eg& IG (8e$& @F" =JJ)& his guidance was reiterated $y the <epartment in i n light of su$seuent federal court decisions in i n 9oderesk$ v. 8irwan  (descri$ed $elow) and -darand 4onstructors 4onstructors v. 9ena" = /&7& @>> (=JJ) (applying strict scrutiny to racial classifications in federal programs)" see letter from Mudith +& Winston to 0ollege and /ni%ersity 0ounsel dated 7eptem$er " =JJ4 and in Ho)wood v. 6e3as 6e3as" I 8&Fd [email protected] (th 0ir& =JJG)" cert. denied " 6e3as v. Ho)wood " =I /&7& =>FF (=JJG) (re5ecting the di%ersity rationale as applied to admissions at the /ni%ersity /ni %ersity of e#as Law 7chool)"  see  letter from Mudith +& Winston to 0ollege and /ni%ersity 0ounsel dated Muly F>" =JJG& he <epartment has applied the policy guidance in a num$er of agency findings since its issuance& issuance& +s with admissions" the de%eloping case law in any particular federal circuit or 5urisdiction (as well as any applica$le state law or initiati%es) must also $e considered $y any institution in re%iewing its race2conscious financial aid programs& 7ome financial aid programs ha%e $een challenged in litigation or in complaints to the /&7& <epartment of Education.s 1ffice for 0i%il 9ights& 8or e#ample" in 1cto$er =JJI a white male student at the /ni%ersity of ulsa filed a class action suit against the 1,lahoma 7tate 9egents for Higher Education in federal district court ( 9ollard v. 'tate of =klahoma)" challenging the legality of a scholarship program that set different test2score reuirements for mem$ers of different racial groups and for men and women& he 1,lahoma +cademic 7cholars :rogram was



esta$lished $y state law and pro%ides pro%ides scholarships to in2state students students with high test scores& he case was settled in =JJI" and in Mune =JJJ the t he state eliminated the race and gender2specific features of the program& he <epartment of Education policy guidance has not $een amended $y the current administration as of the date of the writing of this outline& he guidance descri$es descri$es the applica$ility of itle C' and its implementing regulations to student financial aid that is awarded" awarded" at least in part" on the $asis $asis of race or national orig origin& in& he guidance sets forth se%eral principles" which are descri$ed $riefly $elow" and pro%ides legal analysis to support each of the principles& he <epartment noted that in identifying identifying these principles" it was “not foreclosing the possi$ility possi$ility that there may $e other $ases on which a college may support its consideration of race or national origin in awarding financial aid"” and that other 5ustifications presented during the course of a itle C' in%estigation would $e considered on a case2$y2case case2$y2case $asis& J 8ed& 9eg& IG" n&=& 6rin#i$le ? Finan#ial 2id for isad5antage isad5antaged d Students

 - college ma$ make awards of financial aid to disadvantaged sstudents, tudents, witho without ut regard to race or national origin, even if that means that these awards go dis)ro)ortionatel$ to minorit$ students.  #d. at I&

he guidance notes e#amples such as aid for students from low2income families or from school districts with high dropout rates" or for students from single2parent families or families in which few or no mem$ers ha%e attended college& 1ther possi$ilities might include students from particular particular geographic locations (e&g&" the inner city)& +lthough some critics charge that such programs ser%e largely as pro#ies for the consideration consideration of race" they are li,ely to $e upheld if they can $e shown to relate in some $road sense to the mission and goals of the institution& +s the <epartment noted" 't is the <epartment.s %iew that awarding financial aid to disad%antaged students pro%ides a sufficiently strong educational purpose to 5ustify any racially disproportionate effect the use of this criterion may entail& 'n particular" the <epartment $elie%es that an applicant.s character" moti%ation" and a$ility to o%ercome economic and educational disad%antage are educationally 5ustified considerations in $oth admission and financial aid decisions&  #d. at IJ&

7imilarly" financial aid can $e awarded $ased on race2neutral criteria such as e#perience in di%erse cultural or social settings" interest in studying studying fields such as ethnic studies" interest interest in community ser%ice" etc& his same sort of 5ustification for facially race2neutral criteria has also $een used historically to support ot other her criteria that ha%e had a disproportionate impact in fa%or of white students (e&g&" alumni preferences)&

healternati%es <epartmenttoofconsider Education indicated that it will soon guidance with to race2neutral in ahas %ariety of conte#ts" $ased onpro%ide models additional they ha%e identified fromregard 0alifornia" e#as" and elsewhere& 't would $e prudent for institutions to rre%iew e%iew the alternati%es cited $y the <epar <epartment tment and to  $e prepared to articulate why these approaches might not ser%e as adeuate su$stitutes for race2conscious race2conscious programs&

6rin#i$le '? Finan#ial 2id [email protected] b) Congress

 - college ma$ award financial aid on the asis asis of race or na national tional origin if the aid is awarded under a  /ederal statute statute that authori(es authori(es the use of rac racee or national or origin. igin.  #d. at I&

he <epartment noted that aid programs authoriKed under a specific 8ederal law cannot $e considered to %iolate another 8ederal law (i&e&" itle C')" $ased on “the canon of construction under which the specific pro%isions of a statute pre%ail o%er the general pro%isions of the same or a different statute &”  #d. (citations omitted)& + uestion uestion that often arises" howe%er" is the degree of specificity needed in legislation and in legislati%e history to demonstrate specific congressional intent to create create race2targeted progr programs& ams& 8urthermore" in =JJ" the 7upreme 0ourt ruled that federal programs containing racial classifications are su$5ect to the same le%el of scrutiny as state and local  programs& 'ee -darand 4onstructors, #nc. v. 9ena" = /&7& @>> (=JJ)&


7ince the guidance was issued" some some federal financial aid programs programs ha%e $een challenged or modified& 8or e#ample" a white male graduate student at 0lemson /ni%ersity22who failed to win one of @@> 6ational 7cience 8oundation (“678”) research fellowships22sued 678 in federal court in =JJ for denying him a chance to apply for one of >> additional slots in i n 678.s 3inority ;raduate 9esearch 8ellowship :rogram $ased on his race& 'ee 8idd v. 1ational 'cience /oundation" 6o& J[email protected]>>2+ (E&<& Ca& filed <ec& [email protected]" =JJ)& =JJ)& 7lots in the program had $een $een reser%ed for mem$ers of groups traditionally underrepresented in science and engineeringS$lac,s" Hispanics"  6ati%e +mericans" and :acific 'slanders& 678 initially contended that its mandate for the fellowship program came directly from its founding mission to strengthen /&7& science and from more recent legislation ordering it to ta,e steps to increase the num$er of minorities in science& he suit was settled in =JJI" and 678 de%eloped a new  program of graduate fellowships ma,ing financial awards to institutions instead of to indi%idual students&

6rin#i$le /? Finan#ial 2id To Remed) 6 6ast ast is#rimination

 - college ma$ award financial aid on the asis asis of race or na national tional origin if the aid is necessar$ to overcome the effects of )ast discrimination.  J 8ed& 9eg& at I&

his principle reuires the demonstration of a ne#us $etween present effects and past discrimination in  policies" practices" etc& he <epartment stated that a finding of discrimination may $e made $y a court" administrati%e agency such as the <epartment.s 1ffice for 0i%il 9ights" or a 7tate or local legislati%e $ody with a strong $asis of e%idence of discrimination within its 5urisdiction& he guidance stated that a college college need not wait for such a finding to act" howe%er" so long as the iinstitution nstitution had a strong $asis in e%idence for concluding that race2 conscious affirmati%e action was needed to o%ercome the effects of its own past discrimination& 8inancial aid has $een used at a num$er of institutions as a tool to o%ercome the effects of past discrimination" freuently in states that had once had de *ure  segregat segregated ed systems of higher education Smany of which were su$5ect to continuing desegregation orders& 9ace2restricted scholarships ha%e $een $een offered to white students at historically $lac, institutions" as well as to $lac, $lac, students at traditionally white institutions& 8or e#ample" a federal 5udge in =JJ ordered two historically $lac, institutions in +la$ama (+la$ama 7tate /ni%ersity and +la$ama +3 /ni%ersity) to spend up to N= milli million on a year for ten years in new state funding on scholarships for white students& he 0enter for 'ndi%idual 'ndi%idual 9ights $rought suit on $ehalf of non2white sstudents" tudents" and the case was e%entually merged with the state.s $roader desegregation case& 'n 9oderesk$ v. 8irwan 8irwan" a white Hispanic student claimed that his ineligi$ility for the /ni%ersity of 3aryland.s anne,er 7cholarship program for +frican2+merican undergraduates %iolated his = th +mendment eual protection rights and itle C'& he /ni%ersity had esta$lished the scholarship program years ago as part of a de *ureeffects desegregation compliance as the had formerly had apresent  segregated sydiscrimination" system stem of higher education& educ /ni%ersity contended that itplan" needed thestate program to o%ercome of past and ation& cited he minority underrepresentation and low retention retention and graduation rates& he 8ourth 0ircuit 0ourt of +ppeals +ppeals held" howe%er" that the /ni%ersity failed to demonstrate a sufficient ne#us $etween the present conditions it identified and  past discriminatory policies or practices" and that in any e%ent the scholarship program was not narrowly tailored to remediate the pro$lems identified $y the /ni%ersity& FI 8&Fd = (th 0ir& =JJ)" cert. denied " = /&7& [email protected] (=JJ)&

'f a race2targeted aid program is $eing 5ustified on this $asis" some ,ey uestions to consider might include the following* 's there specific e%idence of past discrimination (e&g&" in terms of policies" practices" etc&) at the institution" rather than simply in society at large?

's there specific e%idence of present effects of discrimination at the institution " rather than simply in society at large (as opposed to general concerns a$out underrepresentation or a racially hostile climate •

mirroring larger societal conditions" for e#ample)? 's there some demonstra$le ne#us $etween the present effects and the past discrimination ? •


What $ody has made the decision a$out the need for this form of affirmati%e action?  6rin#i$le 8? Finan#ial 2id To Create i5er i5ersit) sit) •

 - college should should have sustantia sustantiall discretion tto o weigh man$ ffactors>including actors>including rrace ace and national o origin>  rigin>  in its efforts to attract and retain a student )o)ulation of man$ different e3)eriences, o)inions, ackgrounds, and cultures>)rovided that the use of race or national origin is consistent with the constitutional standards reflected reflected in 6itle 5#, i.e., that it is a narrowl$ tailored means to achieve the goal of a diverse student od$.   J 8ed& 9eg& at I&

his principle reflects the di%ersity rationale outlined $y Mustice :owell in  egents of the 0niversit$ of noted 4alif ornia 4aliforni a v. %akke " FI /&7& @G (=JI)" and reaffirmed in the /ni%ersity of 3ichigan cases & Mustice :owell noted that colleges ha%e a 8irst +mendment right to see, di%ersity in admissions to fulfill their academic mission through the “ro$ust e#change of ideas” that flows from a di%erse student $ody&  #d. at [email protected]=F& [email protected]=F& he <epartment <epartment noted in its guidance that race2targeted financial aid is not the same as race2conscious affirmati%e action in admissions" $ecause (among other reasons) financial aid does not in%ol%e a finite" set num$er of pl places" aces" and the a%aila$ility of such financial aid might actually increase the total pool of financial aid a%aila$le to all students& 7ome ,ey uestions to consider include the t he following* Has the institution articulated an interest in di%ersity di%ersity (e&g&" as part of its mission statement)? <oes this interest %ary within or among the institution.s %arious components (e&g&" undergraduate and graduate schools)?

Has the institution de%eloped any e%idence of the educational $enefits of di%ersity on its own campus (e&g&" through sur%ey information from its students" faculty" or alumni)? •

What groups are considered for purposes purposes of race2conscious financial aid? +re there articulated reasons for the inclusion of some groups and not others? 's there any reason to su$di%ide certain categories (e&g&" +sian2+mericans) in light of institutional instit utional needs and demographics?

How is the issue of “mi#ed race” handled?

0arrow Tailoring

his section of the guidance also pro%ides information a$out the factors that should $e ta,en into account in ensuring that a program is narrowly tailored to meet the stated goal& +mong the considerations that affect a determination of whether awarding race2targeted financial aid is narrowly tailored to the goal of di%ersity are (=) whether race2neutral means of achie%ing that goal ha%e  $een or would $e ineffecti%e4 (@) whether a less e#tensi%e or intrusi%e use of race or national origin in awarding financial aid as a means of achie%ing that goal has $een or would $e ineffecti%e4 (F) whether the use of race or national origin is of limited e#tent and duration and is applied in a fle#i$le manner4 () whether the institution regularly ree#amines its use of race or national origin in awarding financial aid to determine whether it is still sti ll necessary to achie%e its goal4 and () whether the effect of the use of race or national origin on students who are not $eneficiaries of that use is sufficiently small and diffuse so as not to create an undue $urden on their opportunity to recei%e financial aid& J 8ed& 9eg& at I& 'n a num$er of recent cases" courts ha%e focused focused on the narrow tailoring issue in scrutiniKing  programs22rather than the more fundamental uestion of whether the di%ersity rationale articulated $y Mustice :owell constitutes a compelling interest& 'n determining whether a program is narrowly tailored to achie%e a compelling interest in di%ersity" some uestions to consider might include the following*


Has the institution considered race2neutral means (or perhaps race as a “plus” factor approaches with less attention to race alone) to achie%e its stated goals? (7ee discussion under :rinciple =" a$o%e&) Ha%e such means actually $een tried" or at least analyKed and determined to $e not sufficiently effecti%e? <epending on the mission of the program in%ol%ed and the circ circumstances umstances of that institution" a college or uni%ersity might want to consider factors such as the following (either in place of" or in addition to" the consideration of race as a factor)*

<emonstrated e#perience with" or commitment to" ser%ing or wor,ing with historically underser%ed or underpri%ileged populations ;raduation from a historically $lac, college coll ege or uni%ersity (H0/) or other minority2 ser%ing institution

E#perience li%ing and wor,ing in di%erse di %erse en%ironments

8irst generation in one.s family to attend college or graduate school

7tudents with disa$ilities

'ndi%iduals who ha%e o%ercome su$stantial educational or economic o$stacles

7ocioeconomically disad%antaged students

7tudents from rural or inner2city areas

7tudents from school districts that ha%e $een historically underrepresented in the nation.s leading uni%ersities and graduate programs

's the institution also ma,ing other types of efforts to reach its goals (e&g&" in terms of outreach" recruiting" etc&)? •

o what e#tent is race considered as a factor (e&g&" is it a “plus” factor or an e#clusi%e criterion)?

+re other factors also considered in terms of di%ersity that contri$utes to the ro$ust e#change of ideas (e&g&" geography" special s,ills and talents" t alents" socioeconomic status" disad%antaged $ac,grounds" etc&)? •

's the program regularly ree%aluated for its impact and effecti%eness" in light of changes in

institutional needs" admissions or student $ody demographics" yields" etc&? 's the program fle#i$le enough so as to allow for the consideration of e#ceptions or special circumstances (e&g&" are white students from disad%antaged $ac,grounds e%er considered)?

<oes the program rely rel y upon general goals rat rather her than uotas uotas??

How does the race2targeted financial aid a%aila$le compare with the amount of o%erall financial aid a%aila$le" ta,ing into account the %arious types of financial aid (grants" loans" wor,2study" etc&)? •


6rin#i$le =? 6ri5ate 1ifts Restri#ted b) Ra# Ra#ee or 0ational Origin

6itle 5# does not )rohiit an individual or an organi(ation that is not a reci)ient of /ederal financial assistance from directl$ giving scholarshi)s or other forms of financial aid to students ased on their race or national origin. 6itle 5# sim sim)l$ )l$ does not a))l$.  #d. 

his principle reflects the limitations on the reach of itle C'" which applies to entities that are recipients of 8ederal financial assistance (i&e&" almost all colleges and uni%ersities)& 'f a college or uni%ersity is in%ol%ed directly in administering a financial aid program" howe%er" or pro%ides significant assistance to an outside programSe%en if that program is funded $y e#ternal sourcesSthen itle C' might still apply& 8or e#ample" in =JJ the 1f 1ffice fice for 0i%il 9ights decided that pri%ately funded funded scholarships at  6orthern Cirginia 0ommunity 0ollege ran afoul of itle C' in part $ecause the scholarships were administered $y a foundation" located at the college" that college officials had created to support the institution& 'ee Healy" :atric," “Education <epartment 7ends 7trong Warning on 9ace2E#clusi%e 7cholarships ,< 6he 4hronicle 4hronicle of Higher  "ducation (1ct& F=" =JJ)& 'n determining whether a pri%ately funded program might ne%ertheless fall within the am$it of itle C'" some ,ey uestions to as, might include the following* o what e#tent is the institution in%ol%ed in administering" or pro%iding significant assistance to" the  pri%ately funded program? •

<oes the institution set the criteria for" or select the recipients of" the pri%ately funded aid?

<oes the institution pro%ide resources or information to the pri%ate program that it does not generally ma,e a%aila$le to other outside pro%iders of financial aid? •

Finan#ial 2id at Histori#all) &la#- Colleges and Uni5ersities

he policy guidance includes additional guidance indicating that historically $lac, colleges and uni%ersities (H0/s) may participate in student aid programs esta$lished $y third parties for $lac, students that are not limited to students at the H0/s (e&g&" the 6ational +chie%ement :rogram)" and that H0/s may use their own institutional funds in those programs if necessary necessary for participation& J 8ed& 9eg& aatt IGF& his pro%ision is intended to ensure that the policy guidance does not su$%ert congressional efforts to enhance H0/s in light of their historical role in +merican higher education&

IV4 &e)ond 2dmissions and Finan#ial 2id? Other T)$es of 6r 6rograms ograms

he principles applica$le to admissions and financial aid may also apply to other types of educational  programs and acti%ities in which race or national origin is considered as a factor for participation& hese programs might include" for e#ample" recruiting and outreach programs" mentoring or tutoring programs" $ridge or summer  programs" special orientation programs" etc& he 0enter for 'ndi%idual 9ights (0'9) has long asserted that such  programs are su$5ect to the same sorts of legal challenges as admissions and financial aid programs& programs& 'ee, e.g.,  acial 9references 9references in Highe Higherr "ducation: 6he ights of 4ollege 'tude 'tudents>nts>- Handook (0enter for 'ndi%idual 9ights" =JJI)& he 0enter for Eual 1pportunity and and +merican 0i%il 9ights 'nstitute ha%e also written letters to doKens of colleges and uni%ersities" indicating that t hat they will challenge such programs (particularly if they are race2 e#clusi%e in nature)& +s Mustice 1.0onnor indicated in the !rutter   decision" howe%er" “co “conte#t” nte#t” is important& 'n other words" each program must $e e%aluated carefully on a case2$y2case $asis in terms of its history" purposes" and impact i mpact on minority and ma5ority students (among other factors)& factors)& 'n re%iewing such prog programs" rams" some factors to consider might include*


The histor) and $ur$ose of the $rogram. in#luding an) e"ternal relationshi$s in5ol5ed (e4g4. $arti#i$ation in a #onsortium with other institutions! i nstitutions! ·

How the program relates to other /ni%ersity programs (e&g&" admissions" financial aid" etc&)



<oes the program directly support the /ni%ersity.s admissions and recruitment effortsSi&e&" is it designed to increase applications" the yield of students with particular types of $ac,grounds" etc&?

What criteria are considered considered for participation in the progra program? m? +re some non2minority students eligi$le to  participate (e&g&" $ased on socioeconomic disad%antage or other factors)? factors)? ·

What $enefits are related related to participation in the program? o what e#tent do other students ha ha%e %e access to the same types of resources or ser%ices offered in the program? ·

Ha%e alternati%es $een considered in which race plays less of a role (e&g&" iincluding ncluding race2neutral alternati%es)? o what e#tent would such alternati%es impact the purpose and success success of the program?


V4 3oo-ing Toward the Future Future Challenges

'n addition to possi$le litigation or complaints filed with the /&7& <epartment of Education.s 1ffice for 0i%il 9ights (under itle C' of the 0i%il 9ights +ct of =JG)" opponents of affirmati%e action in higher education ha%e indicated that they will pursue other political and pu$lic relations strategies to try to eliminate any consideration of race or national origin in programs run or or administered $y colleges and uni%ersities& uni%ersities& 8or e#ample" Ward 0onnerly is pursuing a $allot initiati%e in 3ichigan (similar to 0alifornia.s :roposition @>J) to amend the state constitution so as to prohi$it the consider of race" national origin" and gender in higher education admissions as well as other conte#ts& 7imilar efforts are unde underway rway in other states (e&g&" 0olorado) 0olorado)&&

Collaborati5e Efforts

'n light of the 0ourt.s stated e#pectation that the consideration of race as a factor in admissions will no longer $e necessary in @ years" colleges and uni%ersities should $e wor,ing in partnership with other institutions in society to study and address address educational preparation and opportunity opportunity for students at all le%els& 0reati%e colla$orations (e&g&" with corporations" other non2profit organiKations" states" school districts" etc&) to deal with “pipeline” issues such as [email protected] student preparation" teacher training" and other $arriers to eual access and achie%ement should $e pursued& pursued& +ll institutions in society ha%e a %ested interest interest in ensuring di%ersity at all le%els" and all ha%e e#pertise and resources to $ring to the ta$le& he great coalition of interests that wor,ed to con%ince the 7upreme 0ourt that di%ersity is a compelling interest in higher education must now turn its attention to the underlying ineuities and $arriers $arriers in our society& 'nstitutions which are acti%ely engag engaged ed in such efforts will $e a$le to demonstrate that they are ta,ing proacti%e steps to meet the challenge set forth $y the 0ourt&



/ni%& of e#as Law 7chool – /&7& +rmy lawyers and intelligence agents attended a conference on 'slam (“'slam and the Law* he uestion of 7e#ism?”) and aggressi%ely uestioned students and staff (+rmy (+rmy is now gi%ing e#tra training to its counterintelligence operati%es)& (9emem$er incident at <ra,e /ni%ersity) /ni%ersity) ·

he lawyers were preparing to go to +sia to handle legal issues $etween /&7& military and local 3uslim  population" and $ecame of associates a man whotouestioned them a$out who they were and why they were there (they reported this suspicious man and two t wo intelligence officials)&


wo agents later %isited the law school to identify the three men" and reuested a list of conference attendees& 6o one cooperated cooperated with them" and they left the campus&

2ffirmati5e 2#tion and i5ersit) in Higher Hi gher Edu#ation

9e%iew of $asic legal principles (eual protection" access" 5ustice) and constituencies Educational %& legal 5udgments – when should courts defer to educational 5udgments (compare to EE10 %& :enn " e&g&) <iscussion of impact on outreach" recruitment" financial aid" academic support" and retention programs (small groups should discuss slides @" @G" and @) 7ome issues to consider for programs in financial aid" outreach" recruitment" etc&* · · · · · · · · · · · · · · · ·

7trict scrutiny (compelling interest ] narrow tailoring) How to demonstrate a compelling interest (research" articulate in policies" etc&) he remedying discrimination rationale %& di%ersity rationale 'ndi%idualiKed" holistic re%iew road definition of di%ersity – lots of factors How to determine how much weight to gi%e to race %is2U2%is other factors 9ace2neutral alternati%es (and race2e#clusi%e %& race as a factor) urden on other students :eriodic re%iew-endpoint How to decide what groups get included" and which do not <ealing with issues of mi#ed race 0oncern with possi$le 109 complaints 'mpact of 1.0onnor.s @2year challenge <ealing with donor intent uilding a critical mass of students – some attention to the num$ers" $ut not uotas or set2asides :ri%ately funded programs that schools administer" or pro%ide significant assistance to (note slide @@)


2TH3ETICS Title I (1ender EBuit)! T 6ote the comparison of itle 'D to itle C' (two discrimination statutes)" and the relationship of the athletics issues to the affirmati%e action-admissions de$ate& itle was enacted =J@4 in gender discrimination in education at pu$lic and pri%ate institutions (similar reach'D to itle C') (seeinhistory iprohi$its n Leahy article) 't.s now enforced $y the /&7& <epartment of Education" 1ffice for 0i%il 9ights (the <epartment of Education was formerly part of the <epartment < epartment of Health" Education and Welfare (HEW)) 9egulations (=J4 HEW) ey pro%ision* 'n determining whether eual athletic opportunity opportunity e#ists" see “whether the selection of sports and the le%els of competition competiti on effecti%ely accommodate the interests and abilities  of mem$ers of  $oth se#es&” :roposed policy statement (109" =JJ) – focus on F $asic considerations* =) :articipation @) 8inancial +ssistance F) +ll other $enefits and opportunities (e&g&" euipment" euipment" loc,er rooms) ! 6arti#i$ation criterion – F2prong test to determine compliance*

=& +re intercollegiate athletic opportunities for men and and women pro%ided in num$ers substantiall) $ro$ortionate  to their respecti%e enrollments? (intended as a safe har$or har$or for compliance) uestion* How do y you ou define su$s su$stantial tantial proportionality? (contro%ersial enforcement enforcement issue) @& <oes the institution ha%e a “histor) and #ontinuing $ra#ti#e of $rogram e"$ansion which is demonstra$ly responsi%e to the de%eloping interests and a$ilities a$iliti es of that AunderrepresentedB se#&” 0hic,en and egg issue* Which comes first" opportunities or interests and a$ilities? F& Whether it can $e demonstrated that the interests and a$ilities of the underrepresented se# ha%e $een “full) and effe#ti5el) a##ommodated $y the present program&” uestion* How do you meas measure ure interests and a$ilities? :ro$lem* 'ndi%iduals and sports sports are not aall ll interchangea$le& + male swimmer or wrestler whose team is cut may not $e a$le to play (or want to play) foot$all or $as,et$all" e&g& ul) '>>/ *ear Colleague+ letter from OCR  (p&  (p& I=) – says the three2prong test has wor,ed well and is fle#i$le& ·

't also says that 109 does not reuire uotas ($ut note the attention to num$ers here)&


't says that cutting cu tting pro programs grams is not a fa% fa%ored ored respons responsee" and that 109 will see, other types of remedies&


'! Finan#ial 2ssistan#e* 7hould $e proportional to participation rates& 7rove %ity #ase %ity #ase (=JI)* 7upreme 0ourt narrowed the reach of itle 'D $y say saying ing that the statute applied only to specific programs within institutions that recei%e federal financial assistance& Congress res$onds to 7rove %ity? %ity? Ci5il Rights Restoration 2#t  (=JI)* roadened the sc scope ope of itle ''D D so as to apply to any “program “program or acti%ity” acti%ity”

at institutions that recei%e federal financial assistance&

Cohen 54 &rown (st Cir4 <<P! (p& I=I) + group of female athletes sued rown /ni%ersity after it demoted its it s gymnastics and %olley$all programs from %arsity to clu$ status& (7ome men.s sports" golf and water polo" were also cut&) GF&G^ of rown.s athletes were men4 $ut only @&^ of the student $ody was male& Court? 4

The There re wa wass no subs substan tantia tiall $ro $ro$or $ortio tional nalit) it)44


0o re re#en #entt $rogr $rogram am e"$an e"$ansio sion n (s (sin# in#ee <L'! <L'!


0o full and eff effe#ti5 e#ti5ee a##ommodatio a##ommodation n of the inter interests ests of fem female ale athletesas athletesas sh shown own b) the $lai $laintiffs ntiffs here (the) did ha5e su##essful teams before the) were #ut!4

 p& IFG* “'nterest and a$ility rarely de%elop in a %acuum4 they e%ol%e as a function of opportunity and e#perience& he :olicy 'nterpretation recogniKes that women.s lower rate of participation in athletics reflects women.s historical lac, of opportunities to participate in sports&” 0ourt* rown.s proposal to cut men.s teams is a permissi$le means of comply complying ing with the statute (p& I)& (0ourt says that it is deferring to the school.s academic freedom interest here)&  Question* Why is athletics treated treated differently from other" academic pr programs? ograms? 's athletics a uniue pro$lem-issue re gender roles? What a$out academic prog programs rams li,e engineering" physics" or nursing nursing??

+rea of contro%ersy* 7chools can comply with itle 'D $y cutting men.s programs ($ut finances are often the real reason for such cuts)& 3yth* 3en.s foot$all and $as,et$all $as,et$all teams su$sidiKe all other sports – this is not true at most institutions& 8oot$all is a ,ey factor under itle 'D $ecause of the large l arge siKe and cost of the teams-programs& Question : #s the )ro)ortionalit$ )ro)ortiona lit$ test given too much weight as com)ared with the other )rongs ?

Leahy article* hree measures of compliance" compliance" where each is inadeuate" inadeuate" are not superior to one& itle 'D has $ecome an affirmati%e action mandate" rather than an anti2discrimination statute&  6ote* 60++ is ta,ing a more acti%e role now in pushing for gender euity among its mem$ers& 60++ is a “%oluntary” association with colleges and uni%ersities as mem$ers4 it is not a go%ernment $ody&


9elated issue* What model for college sports will pre%ailSamateur model" or commercial-professional commercial-professional model? (60++ has usually fought to preser%e the amateur model&) Muestion* How does enforcement of itle 'D 'D compare with itle C' and the current current de$ate re admissions policies? (see 0ohen at p& [email protected]* “his is not an affirmati%e action ccase&” ase&” +t p& [email protected]" the court goes on to say that that itle 'D is an anti2discrimination statute" not an affirmati%e action statute – $ut it does $ermit  affirmati%e affirmat i%e action )

7ee also $ottom p& IF" distinguishing athletics from admissions – you ha%e to 1%erallof programs $ecause colleges are allowed to ha%e gender2segregated gender2segrega tedcompare teams& men.s and women.s

Cureton 54 0C22 (/d Cir4 <<<! (p& II) Court? 0C22 is not sub%e#t to Title VI (it does not ha5e #ontrolling authorit) o5er its member institutions  the) get to de#ide whether to #om$l) with wi th its rules and regulations!&

0hallenge $y +frican2+merican athletes to 60++ prohi$ition on freshman year intercollegiate competition $y athletes not attaining minimum cutoff score on scholastic aptitude tests (7+)&  60++ had an affiliated fund for a youth enrichment program& 0hallenge alleged dis$arate im$a#t  on $asis of race (note the reliance on specific cut2off scores)&

I0 THE 0EWS &allot Initiati5e* 3' state court in%alidated the 3ichigan 3ichigan 0i%il 9ights 'nitiati%e in its current form for its failure to comply with a state law reuirement to identify pro%isions of the 3' 0onstitution that would $e amended (in this case" the eual protection clause in +rticle =" 7ection @)& 0ational 2sso#iation of S#holars is underta,ing a campaign to use state open2records laws to force selecti%e pu$lic colleges to re%eal e#actly how they t hey are considering race and ethnicity in admissions&

I0TE33ECTU23 6RO6ERT7 Question: What is the )ur)ose )ur)ose of co)$right co)$right law?

 6ote how the /ni%ersity community represents all possi$le interests under copyright law& Sour#es of 3aw Constitution?  +rticle '" 7ection I" clause I* he 0ongress sshall hall ha%e :ower & & & o pr promote omote the :rogress :rogress of 7cience and the useful +rts" $y securing for limited times to +uthors and 'n%entors the e#clusi%e right to their respecti%e Writings and <isco%eries& Federal statutes (on copyright" patent" trademar,) – note the related federal $ureaucracies such as the /&7& 0opyright 1ffice and /&7& :atent and rademar, 1ffice& What Co$)right 6rote#ts ·

+n “original” wor, of authorship that is fi#ed in a tangi$le medium of e#pression (e&g&" literary" musical" dramatic" choreographic" pictorial" graphic" sculptural" audio%isual" and architectural wor,s) – reuires a minimal degree of creati%ity4 no uality reuirement



Em$odiment is sufficiently permanent to permit it to $e percei%ed for a period of more than transitory duration (e&g&" e2mails are protected)


Ideas  themsel%es are not protected (unr (unrecorded ecorded oral e#pression is not protected)


Fa#ts are not protected" $ut compilations may $e


/&7& go%ernment documents are not protected


:rotection from the moment of creation* creation* 6otice" registration with the /&7& 0opyright 1ffice" and pu$lication are not reuired for copyright protection ($ut are helpful in the e%ent of litigation) l itigation) uration and E"tent of 6rote#tion




8or current wor,s" copyright protection lasts for life l ife of the author ] > years (the default assumption is that someone has copyright to the wor," e%en if it is a%aila$le on the 'nternet) Wor,s for hire are protected for J years after first pu$lication or [email protected]> years after creation of the wor, " whiche%er e#pires first Wor,s no longer protected $y copyright are in the “pu$lic domain” Other Forms of Intelle#tual 6ro$ert)




6atents – 'n%entions that are non2o$%ious" no%el" useful" and fully disclosed through the /&7& :atent and rademar, 1ffice& Trademar-s – Words" names" sym$ols" de%ices" or any com$ination thereof" used to distinguish goods from those manufactured $y others" and to indicate i ndicate their source& (7er%ice mar,s are the same as trademar,s e#cept that they identify and distinguish ser%ices rather than products&) Trade Se#rets  – 8ormulas" patterns" de%ices or compilations compil ations of information used in $usiness that pro%ide a competiti%e ad%antage o%er others who do not ,now or use them& Ownershi$



he creator is ordinarily the owner (two or more creators may $e 5oint owners with 5oint rights)" unless they transfer the rights& Wor-s made for hire – wor,s created $y employees within the scope of their employment $elong to the employer  ·


ut note a#ademi# tradition  and its relationship to protecting academic freedom (see" e&g&" ++/:  policy statement" /ni%ersity of 3ichigan policy4 ;orman article)

Co$)right ownershi$ and #redit are not the same – credit may always $e gi%en to participants in a pro5ect" e%en if someone else holds the copyright Uni5ersit) 6oli#) and 6ra#ti#e ·


Students own their own wor,s" unless they create them in the course of employment at the /ni%ersity under a “wor, for hire” arrangement (see new copyright policy polic y at www&copyright&umich&edu)

/se of unusual /ni%ersity resources can trigger ownership interest $y the /ni%ersity (see" e&g&" /23 policy at p& [email protected])


Question: What constitutes ;unusual ;unusual universit$ re resources<? sources<? ·


/se of the /ni%ersity.s name or mar,s (other than for purposes of pro%iding an indi%idual.s title) ti tle) is itself use of a significant /ni%ersity resource and reuires institutional instit utional appro%al& Wor,s created at or for the /ni%ersity should not $e used in ways that create conflicts of interest or commitment for staff mem$ers& (see /23 policy at p& [email protected]) E"#lusi5e Rights of Co$)right Owners (a *bundle of rights+!




9eproduction of the wor, in whole or in part :reparation of deri%ati%e wor,s (e&g&" translations" musical arrangements" dramatiKations" sound recordings" and second editions) <istri$ution of copies of the wor, to the pu$lic $y sale" gift" rental" loan" or other transfer (with e#ception of “first sale doctrine”)


:u$lic performance of the wor, 


:u$lic display of the wor, 


hese rights can $e di%ided up among %arious parties using contracts (in $oth e#clusi%e and non2e#clusi%e ways to share or transfer rights)

 S5;66 7R"U< =!S%USS!"#S: S%E#;R!"S "# W;#=; <R">!4 %"6E ;9ER;"R

Fair Use of Wor-s b) Others , 

+ statutory e#ception to the monopoly of rights held $y the copyright owner& he fair use of a copyrighted wor," including such use $y reproduction in copies or phonorecords Y for purposes such as criticism" comment" news reporting" teaching (including multiple copies for classroom use)" scholarship" or research" is not an infringement of copyright& 'n determining whether the use made of a wor, in any particular case is a fair use the factors to t o $e considered shall include22 8actors that are ta,en into account on a case2$y2case $asis* ·


:urpose and character of the use (e&g&" personal" educational" transformati%e" commercial)  6ature of the wor, $eing used (e&g&" factual" creati%e)


+mount and su$stantiality of the portion used in relation to the whole ($oth uantitati%e and ualitati%e)


Effect on the mar,et for the original (for the particular type of use)

Carious guidelines ha%e $een de%eloped o%er the years $y groups trying to pro%ide additional guidance" $ut these guidelines do not ha%e the force of law (see 0rews article) he concept of ualitati%e guidelines is in tension with the more fle#i$le" holistic approach of fair use (compare to the “totality of the circumstances” test for hostile en%ironment cases" or to the type of “holistic" indi%idualiKed re%iew” reuired in admissions)&


 6ote +ichigan Document Document 'ervices case (p& J=) – 0ommercial copy shops that sell coursepac,s do not en5oy the same protections as uni%ersities themsel%es& ·



8air use is an affirmati%e defense to a claim of copyright infringement" and thus the party claiming that its secondary use of the original copyrighted wor, constitutes constitut es a fair use typically carries the $urden of proof as to all issues in the dispute& (7ee p& JI" n&) he defendants tried to argue that the t he mar,et impact should $e measured m easured $y lost sales of $oo,s" not  permission fees ($ut the court says this argument goes too far and is circular)&  6ote the dissents here (claiming that the ma5ority read the concept of “fair use” too narrowly) o



Mudge 3artin.s uestion* 7hould it matter who operates the photocopier photocopier (i&e&" the student or the copyshop personnel)? personnel)? (p& J@) Mudge 9yan.s dissent* “7ociety $enefits when prof professors essors pro%ide di%erse materials materials that are not central to the course $ut that may enrich or $roaden the $ase of ,nowledge of the students& 7ociety is not $enefited $y esta$lishing a presumption that discourages professors from e#posing their students to anything $ut complete original wor,s e%en when most of the wor, is irrele%ant to the pedagogical purposes" and students are not $enefited or authors-pu$lishers *ustl$ compensated if students are reuired to purchase entire wor,s in i n order to read the ^ or F>^ of the wor, that iiss rele%ant to the course&” (p& [email protected]) Mudge 3erritt.s dissent (p& J)* J)* 't is wrong to measure the aamount mount of harm to the pu$lishers $y loss of a presumed license feeS$ecause they may not ha%e a right to collect such fees in the first  place&

Question: 4an the ;market< e changed as modern technolog$ allows allows for licensing of the smallest  )ossile segments segments of works?

7ome suggestions* +llow greater use of wor,s $y academic authors What a$out tuition re%enues uni%ersities get? 7pontaneity of use in the classroom

'+-LL !=09 D#'40''#=1': '4"1-#= =1 #5-11- 'H--LL

:eer2to2peer file2sharing <iscussion uestion (0oursetools site)* How do you thin, uni%ersities should respond respond to peer2to2peer ffile2 ile2 sharing (in%ol%ing music and mo%ies) $y $y students on their campuses? campuses? 7hould uni%ersities ha%e responsi$ility to regulate this $eha%ior? <iscussion uestion (0oursetools site)* How do you thin, uni%ersities should respond respond to peer2to2peer ffile2 ile2 sharing (in%ol%ing music and mo%ies) $y $y students on their campuses? campuses? 7hould uni%ersities ha%e responsi$ility to regulate this $eha%ior? 7ee +0E discussion paper (p& J@)4 note <30+ notice and ta,e2down procedures to shield uni%ersities from lia$ility&


 6ote latest round of su$poenas from 9'++ to students at a num$er of uni%ersities (including the /ni%ersity of 3ichigan)&

I0 THE 0EWS 3)nne Chene) s$ee#h at U4 of ;ar)land  – F 3d& 7tudents are facing disciplinary action for an incident in which they shouted uestions and comments comments to 0heney during a pu$lic for forum um at the school& here was no open microphone at the e%ent4 guests had had $een told to su$mit uestions in writing& 'nstead" two students called out their uestions (one on gay marriage" another on reparations for descendants of sla%es) from their t heir seats" and the third loudly uttered a %ulgarity in response to one of 0heney.s answers& he speech was taped for 027:+6 and 066& wo students ha%e $een accused of “disorderly or disrupti%e conduct” under a /23d& :olicy designed to protect the rights of spea,ers from $eing shouted off stage or drowned out $y contentious audience mem$ers&

Question: 'hould students e disci)lined disci)lined for this sort of s)eech? s)eech?

THE I0FOR;2TIO0 21E &alan#ing Rights and Interests in the Ele#troni# En5ironment (6ri5a#). Se#urit). et#4! 0hallenge* +pplying traditional notions and precedents on pri%acy" pri%acy" etc& in cy$erspace (impact of technology and and glo$alism)& ig issues-concerns* Law enforcement in%estigations (e&g&" (e&g&" with international students)4 copyright infringement committed $y students and staff with wi th uni%ersity resources and networ,s Question: What is is a reasona)le e/'ectation of 'rivacy  for students, facult$, facult$, staff, etc. in the their ir e2mail,  #nternet searches, searches, etc., when using using universit$ resources? 7'ee Hawke ov overview. erview.

/ of 3 policies* 0reate some e#pectation of pri%acy pri%acy in e2mail" etc& (not a strict limitation to $usiness purposes only)& (see p& =>>G =>>G** “+t the /ni%ersity of 3ichigan" electronic mail and computer files are considered considered pri%ate to the fullest e#tent permitted $y law&”) Questions: What issues)otent issues)otential ial concerns do $ou see with th thee asic )olic$ statem statement? ent? [email protected]#, ). ABBC Wh$ not have a strict limitation to usiness )ur)oses onl$?  (7ome employers employers ha%e done so&) Wh$ not monitor e2mail, #nternet searches, etc.? (0oncerns with academic freedom" chilling effect on research and discussion" etc&) ISCUSS H76O Q4

Felsher 54 Uni5ersit) of E5ans5ille (7upreme 0ourt of '64 @>>=) (p& =>=) :rofessor 8elsher had $een terminated $y the /ni%ersity& He created 'nternet we$sites and e2mail accounts containing portions of the names of the /ni%ersity president" C: and dean (using /E" a common a$$re%iation for the /&)& He featured articles he.d written on these t hese we$sites he created" alleging wrongdoings $y these t hese indi%iduals&


/sing the e2mail accounts he created" he sent e2mail to se%eral uni%ersities nominating these officials for %arious academic positions" and then directed the reader to one of the we$ pages he.d created as a reference for the nominee.s acti%ities& he /ni%ersity and its officials sued 8elsher for in%asion of pri%acy& uestion* 0an a corpor corporation ation sue for in%asion of pri%acy? Court?  2 #or$orate entit) has no $ersonal right of $ri5a#) (but indi5iduals do!4

ut 8elsher created the imposter we$sites and e2mail addresses for the sole purpose of harming the reputation of the /ni%ersity and its officials& 1ther arguments* /nder $usiness law" 8elsher ccould ould $e charged with misa$$ro$riation  of a name name or li,eness (co%ered in state unfair competition laws and trademar, statutes" and in common law torts such as tortious interference with $usiness $usiness relations)& (1ne pro$lem* he /ni%ersity had not pled some of these arguments arguments in the case&) Court? The re$utation of the Uni5ersit) is dire#tl) $ro$ortional to the re$utation of the indi5iduals it em$lo)s4 It u$holds the in%un#tion ag against ainst FelsherAs #ontinued misleading use of the indi5idual $laintiffsA names and li-enesses (with minor modifi#ations!. and notes that the Uni5ersit) ma) ha5e other grounds to be $rote#ted& 2#ademi# freedom:First 2mendment? 9emem$er that pu$lic employees. rights are limited to matters of pu$lic concern" not purely pri%ate grie%ances& 22U6 Re$ort?

2#ademi# Freedom and 0ational Se#urit) in a Time of Crisis (@>>F) (coursepac," p& =>@I) 7pecial committee was charged with assessing ris,s to academic freedom and free inuiry posed $y the nation.s response to the attac,s on the World rade 0enter and the :entagon&  6ote ++/: statement from World War ''* “+cademic freedom is one facet of intellectual freedom4 other aspects of that larger conceptSfreedom of speech" freedom of the press" and freedom of religionSare among the a%owed su$5ects for which this war is $eing fought& 't would $e folly to draw a $oundary line across the area of freedom&” (p& =>@I) 'n general" ++/: says secret research is fundamentally at odds with the free circulation of research results&  p& =>[email protected]* When the go%ernment in%o,es claims of security to 5ustify an infringement of our ci%il or academic li$erties" the $urden of persuasion must $e on the go%ernment to satisfy three essential criteria* =&

he go go%ern %ernment ment must d demons emonstrate trate tthe he par particular ticular threat threat to which the the measure measure is intende intended d to respond" not as a matter matt er of fear" con5ecture" or supposition" $ut as a matter of fact&


he go go%ern %ernment ment must d demons emonstrate trate h how ow any propos proposed ed measure measure will effec effecti%ely ti%ely deal deal with a particular threat&


he go go%ern %ernment ment must sshow how why the de desired sired rresult esult could could not not $e rea reached ched $y means means ha%ing ha%ing a less significant impact on the e#ercise of our ci%il or academic li$erties&

he federal go%ernment has recently placed emphasis on the elusi%e category of “sensiti%e $ut unclassified” information& he report urges that the e#tent and nature of restraints or unclassified resea research" rch" howe%er sensiti%e" should remain chiefly the responsi$ility of the scientific community&


6atriot 2#t* :assed after J2==" J2==" it affects colleges in a num$e num$err of way ways& s& (see p& =>FF et al&)

E#&* +mendment to 8E9:+* + senior official in <1M may see, a court order to collect educational records deemed rele%ant to an in%estigation or prosecution of terrorism as an e#ception to the reuirements for confidentiality& he disclosure can occ occur ur without the consent of the student" and the institution need not notify the student or parents that information has $een disclosed& Question: #s this this necessar$? necessar$? #s it good )ulic )olic$? ·

 6ote <epartment of <efense proposal (which was withdrawn) that scientists whose research was funded $y the federal go%ernment would ha%e to o$tain o$t ain prior appro%al from the go%ernment $efore pu$lishing their wor, or discussing it at scientific conferences& conferences& 'nstead" a =JI 6ational 7ecurity <ecision <ir <irecti%e ecti%e still in  place says that to “the ma#imum e#tent possi$le" the products of fundamental research remain unrestricted&” (p& =>F)

0oncern* 3ore research research pro5ects will $e su$5ect to classifica classification& tion& 9eport (p& =>FI)* “7ecrecy" an inescapa$le inescapa$le element of classified resear research" ch" is fundamentally incompati$le with freedom of inuiry and freedom of e#pression&”  6ote reasury <epartment rules on wor,s originating in countries su$5ect to a /7 trade em$argo (such wor,s cannot $e pu$lished or disseminated if they are enhanced or edited here in any way&) S;233 1ROU6S , ISCUSS H76OS QQ' and /4 ISCUSS H76O Q'4 Visiting S$ea-ers? 22U6 6osition ($4 >=>!*

'nstitutions of higher learning should should $e free to in%ite or not in%ite whome%er whome%er they wish& 1nce an in%itation has  $een e#tended" howe%er" its withdrawal $ecause of pu$lic displeasure with the spea,er.s status or %iews is inconsistent with the $elief that a uni%ersity is a place where all %iewsSe%en the morally repugnantScan $e heard and discussed& Question: Do $ou agree with this assessment? assessment? What if the admini administration stration disagrees with with the individual?

7ee recommendations at pp& =>@2 for the national and campus le%el&

ISSUES I0 2C2E;IC RESE2RCH 2#ademi# Freedom in Resear#h (remem$er =J> 7tatement)

0ontro%ersies can arise a$out the su$5ect matter of research" its purposes (pursuit of ,nowledge" or to help certain interests)" and sources of funding& Funding?  3uch federa federall and state go% go%ernment ernment support has dried up& 0orporate support is growing&

Questions: What )ressures can arise when research is funded $ cor)orations? 7e.g., toacco or )harmaceutical com)anies What should facult$ and universities do aout restrictions on release of data, )ulication of results, etc.?


'hould we e concerned when facult$ memers have a financial interest in the su*ect matter eing  studied? 7e.g., EF of articles in recent recent surve$ had one one or more author authorss with such interests interests Confli#ts of interest  are trac, trac,ed ed $y uni%er uni%ersity sity committees& here are some go%ernment regulations" $ut they.re often %ague and limited& 6rote#tions for Human Sub%e#ts * '9s (institutional re%iew $oards) no now w re%iew %irtually all research in%ol%ing human su$5ects (e%en when scholars inter%iew people)& 2 6ote the impact impact on sstudent tudent rese research arch pro5e pro5ects cts during during normal normal ac academic ademic semesters& semesters&

In re Cusumano 54 ;i#rosoft (=st 0ir& =JJI) (p& =>J) 3icrosoft tried to compel production of research (the professors. notes" tape recordings and transcripts of inter%iews" and correspondence with inter%iew su$5ects) compiled $y $ y academic researchers from inter%iews of employees of 6etscape (a competitor of 3icrosoft)& 3icrosoft" in antitrust litigation" claimed it needed this information to support its defense that 6etscape lost mar,et share due to managerial mista,es& Court? *2#ademi#ians engaged in $reG$ubli#ation resear#h should be a##orded $rote#tion #ommensurate to that whi#h the law $ro5ides for %%ournalists4+ ournalists4+ ($4 ><L! The information is rele5ant and $otentiall) useful to ;i#rosoft (it meets the rele5an#e and need standards!. but ;i#rosoft #ould get this information through other means4 Chilling effe#t? These resear#hersA future eefforts fforts would be se5erel) im$eded (#ourt noted the $romise of #onfidentialit) in their inter5iew $roto#ol. $lus the nondis#losure agreemet with the #or$orate entit) being studied!4 The resear#hers were not $arties to the litigation. so this demand would #reate a ma%or burden on nonG$arties4

A6ote parallel to reuests to ++/: for its records in case in%estigations" where litigation followed&B Question: When might it it e a))ro)riate to e ale to ssu)oena u)oena research re records? cords? What aout student student  )a)ers? ISCUSS H76O Q/4

Question: 'hould academics academics e accorded the ssame ame rights as *ournalists in )r )rotecting otecting source sources? s? Wh$ or wh$ not?

0ourt used a $alancing test here" weighing the rights of the %arious parties-indi%iduals in%ol%ed& Question: What are the interests here? here?

 6ote pu$lic considerations – efficient administration of 5ustice" incenti%es for research on contro%ersial topics" a$ility of researchers to unco%er truth&


Felten (6rin#eton U4! (p& ==>F) :rofessor was doing research on %ulnera$ilities in security systems for copyrighted wor,s& 9'++ threatened him and his team" under <30+ (it was illegal to circum%ent copyright control measures)" if they  pu$lished their paper&

8elten sued4 suit was dropped when 9'++ and go%ernment ga%e assurances they would not sue&  6ote* +0L/ lost a facial challenge to the <30+ (a researcher wanted to re%erse2engineer some filtering software" circum%ent its encryption mechanism" and e%aluate its i ts effecti%eness)&

&ronfenbrenner Case (p& ==>J) 0ornell :rofessor ate ronfen$renner (<irector of La$or Education 9esearch at 0ornell.s 7chool of 'ndustrial and La$or 9elations) ga%e testimony at a town2hall meeting" called $y se%eral mem$ers of 0ongress to discuss proposed legislation that would $ar ma5or la$or law %iolators from from o$taining federal grants& 7he reported on confidential confidential research she conducted on anti2union tactics& 'n her remar,s" she commented on the unfair la$or practices of certain employers" including e%erly Enterprises (the nation.s largest nursing home operator)" to cur$ organiKing efforts& 7he denounced e%erly as “one of the nation.s most notorious la$or law %iolators&” (+ =JJ ;+1 report had identified e%erly as one of = companies that were “more serious la$or law %iolators&”) e%erly sued ronfen$renner in federal federal court for defamation& o win" the company would ha%e to pro%e that the statements she made were false and that she made them maliciously with the ,nowledge that they were false& Questions: What )rotections can we )rovide against such suits? What role should the 0niversit$ )la$ here, if an$, in a )rofessors defense? defense? 6o what e3tent do the 0niversit$s interests coincide with the facult$ memers?

0ornell defended her under its defense and indemnification policy (noting that she had $een  performing a pu$lic ser%ice $y sharing results of her research research in this forum" and that this lawsuit threatens fundamental %alues of an academic institution)& instituti on)& Court? &ronfenbrenner is $rote $rote#ted #ted b) legislati5e immunit) under 62 stat statee law& Other Resear#h Issues

9estrictions on participation of foreign nationals in i n some types of research (e&g&" 3'-<epartment of <efense contracts) :re2pu$lication re%iew clauses (when might they $e legitimate?)


Final E"ams?  8inal e#ams may $e pic,ed up in the Law Li$rary 9eading 9oom as of I +3 on 3onday" 3onday" +pril =J& hey must $e returned to the 9eading 9oom $y hursday" 3ay G at  :3& :lease contact either <ean aum (F2 GF2>=G) or <ean Mohnson (F2G2=>=) to discuss any special circumstances that would impact im pact you during the scheduled e#am time&

:lease indicate your school at the top of the e#am (Law or Education)& 9e%iew general points for writing* ·

1rganiKation-setting priorities (you might not $e a$le to co%er e%erything in depth4 if not" mention other arguments-issues that might arise)


+nalysis – don.t 5ust descri$e or recite legal standards or other cases" $ut apply them to the facts at hand&


0onstituencies-interests – part of a thorough response response


0itations-sources of authority

2#ademi# &ill of Rights

'ntroduced $y <a%id HorowitK – $asic thesis is that faculty at most colleges are o%erwhelmingly li$eral and <emocratic (and that true intellectual di%ersity is lac,ing at these institutions)& uestions*  #s it necessar$? necessar$? What aout e3isting e3isting )rotections for academic fr freedom? eedom?  How would this this work in )rac )ractice? tice? What ste)s cou could ld schools take? What would e the im)act on scholarl$ standards? -re )olitical eliefs relevant relevant in ever$ field? What would e the im)act on institutional autonom$educational autonom$educational decision2making? decision2making? 'hould 4ongress e in this usiness?

CO0C3UI01 THE;ES he mission  and #onte"t dri%e much of Higher Education Law ·

The #onte"t toda) * o


2ge of Information – new technology $rea,s down old paradigms a$out how we teach and how we learn (e&g&" distance education) The #on#e$t of lifelong learning – uni%ersities are engaged with the world more than e%er $efore& E#amples* 8unding for academic research from pri%ate as well as pu$lic sources (which can cause friction) 0ooperation with law enforcement authorities in in%estigating terrorism and other crimes ·



[email protected] (the law is not 5ust a$out the /&7& 0onstitution or statutes – issues such as di%ersity and copyright are worldwide)


2#ademi# freedom and the sear#h for truth  (in teaching" research" etc&) are constantly threatened from the left and from the right& hey are fundamental fundamental to a democr democratic atic society& ·

2#ademi# freedom is a means to an end , tr)ing to $rodu#e the best $ossible learning en5ironment&

Edu#ational ;ission?

<ealing with some of the toughest issues in society (race" gender" religion" war and peace" etc&) in a thoughtful" responsi$le way& 't.s not 5ust a sharing of information" $ut also an opportunity to learn how to thin," analyKe" and argue a$out issues& We treat students largely as adults – need to $e a$le to deal with contro%ersial and unpopular ideas& ;et people to thin, critically and challenge their preconceptions – get out of their t heir comfort Kone ($eing offended is not enough to show a %iolation of law)& Education is a continuum (with [email protected] and lifelong learning)4 !rutter  is  is a legal recognition of this continuum in tal,ing a$out our role in producing leaders for society.s institutions& +ccess is part of the mission (higher education is gateway to opportunity in society) – responsi$ility to society as a whole" not to indi%iduals only& 2utonom) of institutions – different missions" histories" etc& e#isionGma-ing:a#ademi# go5ernan#e (shared authorit)! – note the limits of the law (legal %& educational  5udgments)4 multiple constituencies-interests and relationships to consider& Regulation?  9egulation of higher education is increasing increasing (not 5ust go%ernment" $ut also entities entities li,e the 60++" accrediting agencies" etc&)4 internal regulation is increasing too& 3itigation?  3ore people are turning to the courts to resol%e their grie%ances (a reflec reflection tion of our society)& ·

E#&* 's the student2institution relationship a matter of a contract with lots of specif specific ic mutual promises? (7ame uestions for faculty and staff)

Role and Rule of 3aw? ·


+ way to structure relationships and e#pectations & “Conte"t matters ” – the law can and must change o%er time to reflect changing social mores and conditions& E#amples include* definition of se#ual or racial harassment o o what types of accommodations can $e pro%ided for indi%iduals with disa$ilities what types of wor,s are protected $y $ y copyright law o o what is a “fair use” of another.s wor,   pri%acy %& security $alance (in age after J-==) o 7o as we thin, a$out how to understand law and precedents" these principles must $e ,ept in mind and  $alanced with the idea of original principles (e&g&" in the 0onstitution)&


/ltimately" this #ombination of order and fle"ibilit) ser%es as the $asis for a democratic society& societ y& TTTTTTTTTT

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