Instead, the court held, if schools or school policies maintain racially identifiable characteristics that can be traced to STATE ACTION, the state may be deemed to perpetuate former dis
Trang 1found that a proposed blacks-only law school in Texas would be unequal to the prestigious and then-all-white University of Texas Law School not only in the quality of its tangible facilities but also in the quality of such intangibles as reputation and education
Despite these early victories, de jure racial segregation of public colleges and universities did not become illegal until the court decided BROWN V.BOARD OF EDUCATION OF TOPEKA,KANSAS,
347 U.S 483, 74 S Ct 686, 98 L Ed 873 (1954)
Following Brown, schools throughout the United States were required to adopt desegregation policies, but DE FACTO (i.e., actual) segregation remained in many university systems
Litigation in the federal courts continued more than 50 years after Brown In 1992 the U.S
Supreme Court held that the state of Mississippi had failed to satisfy its duty to desegregate the state university system, in United States v
Fordice, 505 U.S 717, 112 S Ct 2727, 120
L Ed 2d 575 (1992) In Fordice, the state had eliminated its requirement that blacks and whites
be educated separately, but allowed previously
white schools to remain distinct from previously black schools and inaccessible to black students
By the mid-1980s previously all-white schools
in Mississippi remained more than 80 percent white and previously all-black schools remained more than 90 percent black The court found that the state’s policy of requiring higher American College Test (ACT) scores for admis-sion to white schools than to black schools perpetuated the state’s formerly de jure dual system because it effectively foreclosed many black students from attending white schools and forced them to attend black schools, which received less funding The court ruled that merely abolishing legal segregation and imple-menting race-neutral policies (i.e., policies that purport to treat individuals equally without regard to race) did not satisfy the state’s duty to desegregate Instead, the court held, if schools
or school policies maintain racially identifiable characteristics that can be traced to STATE ACTION, the state may be deemed to perpetuate former discriminatory practices in violation of the Equal Protection Clause
In the wake of Fordice, federal courts re-examined segregated systems of higher educa-tion in several states (Knight v Alabama, 14 F.3d 1534 [11th Cir 1994]; United States v Louisiana, 9 F.3d 1159 [5th Cir 1993]) The litigation that resulted in the Fordice decision continued for more than a decade until the claims were finally settled Ayers v Thompson,
358 F.3d 356 (5th Cir 2004)
Federal Law and Private Institutions In 1964,
in response to the slow pace of racial reform, Congress passed the Civil Rights Act of 1964, which prohibited discrimination on the basis of race (and sometimes gender) in public accom-modations, federally funded programs, and employment Title VI of the act prohibits discrimination “on the basis of race, color, or national origin,” in “any program or activity receiving Federal financial assistance,” which includes many centers of higher learning in the United States Title VI reaches state and private schools that receive direct federal funding It also reaches some institutions that receive no direct federal aid but that have a significant proportion
of students who do (Grove City College v Bell, 465 U.S 555, 104 S Ct 1211, 79 L Ed 2d 516[1984]) Affirmative Action Beginning in the late 1960s,
in response to theCIVIL RIGHTS MOVEMENT, many universities began adoptingAFFIRMATIVE ACTION
College Enrollment of Recent High School Graduates, 1970 to 2006
Percent enrolled in college a
a Persons aged 16 to 24 who graduated from high school in the preceding 12 months
Includes persons receiving GEDs.
SOURCE: National Center for Education Statistics, Digest of Education Statistics,
2007.
White Black Hispanic
2000
1990
1980
1970
N/A
N/A
63.99 56.19 53.00
2006
68.5 55.5
57.9
61.53 46.33
47.32 49.93 41.83 52.71 52.01
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Trang 2policies Such policies attempt to encourage or
to promote racial equality by ending de jure
inequalities that remain even though legal
inequalities have been abolished In the
begin-ning, many institutions employed quotas that
reserved a certain number of spots for
applicants of racial minorities Other
institu-tions considered membership in a racial
minority as one variable in determining
whether to admit a student
It was not long before affirmative action
policies came under legal attack as “reverse
discrimination.” The first serious challenge to
affirmative action, REGENTS OF THE UNIVERSITY OF
CALIFORNIA V.BAKKE, 438 U.S 265, 98 S Ct 2733,
57 L Ed 2d 750 (1978), fundamentally changed
its structure In Bakke, Allan Bakke, a civil
engineer of Norwegian descent, applied for
admission to a medical program at the
Univer-sity of California The program in question set
aside 16 spaces for minority students out of a
class of 100 Candidates for the set-aside spaces
did not have to meet the minimum
grade-point-average threshold established for other
candi-dates Although Bakke’s grade-point average fell
slightly below the minimum, he argued that he
would have been admitted on an evaluative basis
if the set-aside spots had not existed He sued
the university under Title VI and the Equal
Protection Clause, arguing that the affirmative
action program discriminated against him on
the basis of his race The U.S Supreme Court
found that the university’s affirmative action
program violated Title VI because it used strict
racial quotas to determine admission
The court found that the program also
violated the Equal Protection Clause because it
was not narrowly tailored to meet a compelling
government interest The court observed that
the program was designed to remedy the effects
of general societal discrimination (a legitimate,
but not compelling, government interest), not
its own specific discriminatory practices, which
might constitute a compelling interest
None-theless, the court held that the use of race as
one criterion in determining admission does
not violate either Title VI or the Fourteenth
Amendment In doing so, it did not prohibit all
consideration of race in admission decisions,
noting with approval certain programs that
take race into account to promote educational
diversity
Following Bakke, programs that set aside a
fixed number of spaces for minority students no
longer constituted an acceptable means of affirmative action Most universities that main-tained affirmative action programs adopted the type of program approved in Bakke, which permits the consideration of race in admission
or scholarship decisions in order to encourage diversity Some schools introduced scholarships that were designed to benefit only certain groups, such as students belonging to a particular race Beginning in the mid-1980s, as the U.S Supreme Court began holding that affirmative action programs designed to remedy the effects of past discrimination would need to satisfy the same strict standards as other race-based classifications (City of Richmond v J A
Croson Co., 488 U.S 469, 109 S Ct 706, 102
L Ed 2d 854 [1989]), race-restricted scholar-ships became the focus of lawsuits
Lower federal courts struggled with Bakke for years In Podberesky v Kirwan, 38 F.3d 147 (4th Cir 1994), the U.S Court of Appeals for the Fourth Circuit considered a challenge to the University of Maryland’s Banneker Scholar-ship program, a merit-based scholarScholar-ship for which only black students were eligible Daniel
J Podberesky, a Hispanic student, qualified for the Banneker Scholarship in all respects but race He sued the university, alleging that the scholarship program discriminated on the basis
of race The university countered that the program was designed to remedy the institu-tion’s own past discrimination, which had led
to the underrepresentation of black students
at the university The court held that the Banneker program violated the Fourteenth Amendment because it was not narrowly tailored to remedy the effects of the university’s
Shannon Faulkner sued for and won admission to The Citadel, a previously men-only public college She is shown here (center) with other new cadets during orientation
on August 12, 1995 MITCHELL SMITH/ CORBIS SYGMA.
Trang 3past discrimination Similarly, the Fifth CIRCUIT COURTof Appeals in Hopwood v Texas, 78 F.3d
932 (5th Cir 1996) determined that the affir-mative action program at the University of Texas violated the Equal Protection Clause because the institution could not prove that the policy was necessary to further a compelling governmental interest
The Supreme Court finally agreed to review its decision in Bakke by granting CERTIORARI in two decisions involving the University of Michigan In one case, Gratz v Bollinger, 539 U.S 244, 123 S Ct 2411, 156 L Ed 2d 257 (2003), the court reviewed the university’s policy
of giving undergraduate admission preferences
to racial minorities The real effect of this program was that virtually all qualified minority applicants were admitted, but not all qualified white candidates were admitted The court concluded that the program was unconstitu-tional because it was not narrowly tailored to further the government’s interest in having a diverse student body
In the second case, Grutter v Bollinger, 539 U.S 306, 123 S Ct 2325, 156 L Ed 2d 304 (2003), the court reviewed the University of Michigan’s law school admissions policy Unlike the undergraduate policy, the law school con-sidered race a“plus” factor among a number of other factors The court concluded that using race as a plus factor was a means of narrowly tailoring the school’s desire to have a diverse student body The result of the Grutter decision was that many colleges and universities altered their admissions policies to consider race as one
of the factors for admissions
Gender Discrimination
Segregated Public Institutions The Equal Protection Clause does not require states to satisfy the same strict standards for gender discrimination as for racial discrimination
Whereas states are held to a “strict scrutiny”
requirement with regard to racial discrimina-tion, they need only demonstrate that discrimi-nation on the basis of gender substantially furthers an important government purpose
The men-only policies maintained by the Virginia Military Institute (VMI) and the Citadel
of South Carolina, have been challenged thro-ughout the years by women seeking admission
In the early 1990s, the U.S Court of Appeals
for the Fourth Circuit considered two unrelated cases that challenged the legality of men-only public colleges: Faulkner v Jones, 51 F.3d 440 (1995), cert denied, 516 U.S 910, 116 S Ct 331,
133 L Ed 2d 202 (1995), and UNITED STATES V VIRGINIA, 44 F.3d 1229 (1994), cert granted, 516 U.S 910, 116 S Ct 281, 133 L Ed 2d 201 (1995) (hereinafter VMI)
The same court reached two different results
in VMI and Faulkner, because Faulkner involved
an individualPLAINTIFF who had sought admis-sion to the Citadel, whereas VMI was brought
by theDEPARTMENT OF JUSTICEand did not involve
a particular student
In Faulkner, the Court required the Citadel
to admit the plaintiff, Shannon Faulkner, because Faulkner was a“real live plaintiff.” The court explained that, although admission to the school was the only appropriate remedy in a case involving a live plaintiff, the state might later develop a parallel program, as recommended in VMI, or adopt a coeducational policy
In VMI, the court held that because
“homogeneity of gender” was integral to the type of leadership education provided at VMI, maintaining a men-only college substantially furthered the legitimate public purpose of providing unique leadership education It then held that the establishment of a separate-but-parallel, state-sponsored women’s college with substantially the same goals as VMI’s would satisfy the requirements of the Equal Protection Clause Faulkner withdrew shortly after the school year began, putting an end to any possible appeals in her case However, the court did hear the government’s appeal from the VMI decision and held that Virginia’s categorical exclusion of women from VMI denied equal protection to women (United States v Virginia, 116 S Ct 2264) The court agreed that gender-based classifications are not completely forbidden by the Equal Protection Clause, but it stated that Virginia had failed to provide“exceedingly persuasive justifi-cation” for excluding women from VMI In addition, the court held that the separate-but-parallel women’s college that Virginia had proposed violated the Equal Protection Clause, terming the women’s college a “pale shadow of VMI” in terms of its educational and leadership opportunities
Title IX Eight years after Congress enacted Title VI of the Civil Rights Act of 1964, it
Trang 4amended the act to extend protection against
discrimination in federally funded programs
to include gender Title IX of the Education
Amendments of 1972 parallels Title VI and has
been used to attack gender discrimination in
such diverse areas as admissions, scholarships,
discipline, andSEXUAL HARASSMENT For example,
in Sharif v New York State Education
Depart-ment, 709 F Supp 345 (S.D.N.Y 1989), a
federal district court held that the state of New
York could not use Scholastic Aptitude Test
(SAT) scores as its sole criterion for awarding
college scholarships without violating Title IX
Because girls score an average of 60 points lower
on the test than boys, and because the SAT was
not, and did not purport to be, a measure of
past performance in school, the court ruled
that its use had a discriminatory effect on the
awarding of scholarships without bearing any
relationship to a reward for successful
perfor-mance in high school In Yusuf v Vassar College,
35 F.3d 709 (1994), the U.S Court of Appeals
for the Second Circuit held that a private college
may have discriminated against a male student
who allegedly sexually harassed a female student,
by systematically applying different and stricter
standards to sexual harassment proceedings
than to other disciplinary proceedings In
Franklin v Gwinnett County Public Schools,
503 U.S 60, 112 S Ct 1028, 117 L Ed 2d 208
(1992), the U.S Supreme Court held that Title
IX also prohibits sexual harassment in
edu-cational institutions and that teachers who
sexually harass or abuse students discriminate
on the basis of sex in violation of Title IX
Title IX’s most visible effect has been in
college athletics Most colleges and universities
operate men’s and women’s athletic programs,
some of which participate in intercollegiate
competitions administered by the National
Collegiate Athletic Association (NCAA) Title
IX caused a great deal of concern when first
enacted, as many schools were worried they
could not remedy unequal participation by
men and women in various athletic programs
without going to considerable expense or
cutting successful programs to achieve gender
equality These schools also were uncertain
about the degree of equalizing necessary in
order to avoid lawsuits
In response, the Department of Health,
Education, and Welfare (now the DEPARTMENT
OF EDUCATION) established a three-part test for
determining whether an institution is complying
with Title IX with respect to its athletic program
An institution has accommodated the interests
of male and female students if it satisfies any
of the three benchmarks:
… intercollegiate-level participation oppor-tunities for male and female students are provided in numbers substantially propor-tionate to their respective enrollments; or Where the members of one sex have been and are underrepresented among intercolle-giate athletes,… the institution can show a history and continuing practice of program expansion which is demonstrably responsive
to the developing interest and abilities of the members of that sex; or
Where members of one sex are under-represented among intercollegiate athletics and the institution cannot show a continuing practice of program expansion,… it can be demonstrated that the interests and abilities
of the members of that sex have been fully and effectively accommodated by the present program (44 Fed Reg 71,418[1979])
The balance between a university’s interest
in maintaining a profitable and successful athletic program and its need to comply with Title IX is a delicate one In Kelley v Board of Trustees, 35 F.3d 265 (1994), the U.S Court of Appeals for the Seventh Circuit addressed a typical case involving these competing interests
In Kelley, the men’s swim team at the University
of Illinois sued the university for violating Title IX after the school cut the men’s, but not the women’s, swimming program in an attempt to eliminate unprofitable athletic pro-grams and to reduce its budget deficit Although neither swim team was popular with spectators and both programs were historically weak, the university did not cut the women’s program because its legal counsel advised that doing so would violate Title IX The court ruled that eliminating the men’s program, but retaining the women’s program, did not violate Title IX even though the school treated the two programs differently
Title IX continues to have many critics, but the effect it has had on women’s athletics is practically unquestioned Twenty-four years after the enactment of Title IX, the number of female athletes at the Olympic Games in Atlanta had risen to 287 The interest among spectators was almost startling, especially because women’s athletics had suffered for years in order to garner support About 65,000 fans watched the
Trang 5women’s soccer team in 1996 win the gold medal, and another 35,000 spectators watched the women fall in the finals of the softball competition
Interest in women’s sports continued to increase throughout the 1990s Despite the formation of several professional women’s basketball leagues, few were successful This changed in 1997 with the establishment of the Women’s National Basketball Association (WNBA), which garnered support from the established National Basketball Association
The league has had unprecedented success, including maintaining contracts with television networks that show the games The focus on women’s athletics expanded to a national scale
in 1999, when the United States women’s soccer team won a stunning victory in the World Cup competition Neither the men’s nor the women’s soccer teams had had success in world-class competition, and the women’s victory transformed many of the female athletes
to celebrity status
Few question that these events would have occurred were it not for Title IX Women’s college basketball, probably the highest-profiled sport for female athletes, typically receives equal attention as the corresponding men’s programs
Likewise, softball and soccer have gained popularity among individual schools as specta-tor sports Nevertheless, college and universities continue to pour extensive resources into larger men’s program, especially football and men’s basketball
Many athletic departments note that these men’s programs earn more revenues based upon a much larger fan base, so the support is justified Athletic departments often chose to drop minor men’s sports instead of adding women’s sports, citing the budgetary con-straints Advocates for women’s programs counter that cutting the budgets of these programs would not likely hinder the revenues significantly and that it would allow athletic programs to both add women’s programs and retain smaller men’s programs
Policies under the administration of Presi-dent GEORGE W BUSH came under fire from supporters of women’s athletics During his campaign, Bush stated his opposition toward any racial or gender quotas, and some felt that this policy could cause conflict with Title IX In
2002 the secretary of education established the
Commission on Opportunity in Athletics, which issued its final report on February 28, 2003 The commission found that opportunities should be improved for all competitors, however, women’s groups claimed that the report undermines the importance of improving opportunities for women’s programs specifically
A report issued in 2005 by the Department
of Education caused further controversy The report suggested that colleges and universities could gauge interest in men’s and women’s sports through the use of surveys Women’s groups and others criticized the report, while other groups, including a national association of wrestling coaches, applauded the report PresidentBARACK OBAMAhas expressed strong support for Title IX In March 2009, he established the White House Council on Women and Girls, which will consider a number of issues related
to women’s rights, including the rights pro-tected by Title IX
Academic Freedom: The Right to Speak Freely
The First Amendment prohibits the federal and state governments from infringing on freedom of speech Freedom of speech, which is central to academic freedom, is highly prized on college and university campuses At the same time, most educational institutions recognize the impor-tance of maintaining an atmosphere in which all students enjoy equal educational opportunities and freedom from discrimination The need to balance differing individual rights has led many universities to enact policies purporting to regulate or discipline certain types of speech, and was the focus of many First Amendment cases in the 1980s and early 1990s
Racially and religiously motivated acts of VANDALISM, intimidation, and violence on college campuses began to attract increased attention in the mid-1980s Much of this activity involved incidents such as the following:
nA fraternity fund-raising “slave auction” featuring fraternity members in blackface who were “sold” to provide services to bidders
nThe distribution at a state school of leaflets warning,“The Knights of theKU KLUX KLAN Are Watching You”
nA poster made by a student and hung on her dormitory room door, listing“homos”
Trang 6as a category of people who would be“shot
on sight”
In response, many universities adopted
policies that prohibited speech and conduct
that caused offense or interfered with
educa-tional opportunities based on any number of
characteristics, especially race, national origin,
gender, and religion The University of
Michi-gan adopted a typical policy on discrimination
and discriminatory harassment that became the
subject of a lawsuit in 1989 In Doe v University
of Michigan, 721 F Supp 852 (1989), the U.S
District Court for the Eastern District of
Michigan examined this policy and determined
that it violated the First Amendment because it
was vague and overbroad—that is, it was
unclear about the scope of the speech that it
would affect and thus potentially encompassed
constitutionally protected speech Doe was filed
by a graduate student who feared that his
theories about genetic bases for differences
between men’s and women’s relative abilities
to perform certain tasks would be regarded as a
violation of the policy were he to discuss them
in class because some students might regard
them as sexist and offensive
The court agreed that the university policy
violated the First Amendment and had a
“chilling effect” on the free exchange of ideas
The court observed that the policy certainly
applied to speech that would not be
constitu-tionally protected, such as imminent threats of
violence, but also swept under its umbrella
speech that might be controversial or even
offensive but otherwise constitutionally
pro-tected.“It is firmly settled,” noted the court,
that under our Constitution the public
expression of ideas may not be prohibited
merely because the ideas are themselves
offensive to some of their hearers These
principles acquire a special significance in the
university setting, where the free and
unfet-tered interplay of competing views is
essen-tial to the institution’s education mission
The court then observed that because
Michigan’s policy was so vague that it
encom-passed even constitutionally protected speech,
and because this vagueness led to the potential
for arbitrary enforcement, the policy was
unconstitutional
First Amendment protection is not limited
to the classroom setting alone In Iota Xi
Chapter v George Mason University, 993 F.2d
386 (1993), the U.S Court of Appeals for the
Fourth Circuit held that George Mason Univer-sity, a state univerUniver-sity, had violated the Sigma Chi Fraternity’s First Amendment rights by suspending its privileges as a university organi-zation after the fraternity held an event, called the Ugly Woman Contest, that depicted women
in a particularly degrading manner The court held that skits, like motion pictures, movies, theatrical productions, and nude dancing, are
a form of expression that are entitled to First Amendment protection
Public university professors and employees also enjoy First Amendment protection, but as workers in the public sector they are subject to certain limits Unlike private-sector employees, who may be disciplined or terminated for nearly anything that is not prohibited by state or federal law, public-sector employees may not be disci-plined on the basis of their speech if the speech involves a matter of public concern The state may discipline an employee if it can show that it would have done so regardless of the speech, or
if the speech actually interfered with the effective fulfillment of public responsibilities
In Jeffries v Harleston, 52 F.3d 9 (1995), the U.S Court of Appeals for the Second Circuit held that the City College of New York could reduce the term of a black studies professor’s chairmanship based on an off-campus speech
he had made (which had included derogatory remarks about Jews) about bias in the New York public-school system The court ruled that although the speech involved an area of public concern, the college was justified in reducing Jeffries’s term because it was motivated by a reasonable prediction that the speech would adversely affect the school’s operation In an earlier case, the same court had held that the City College of New York could not undermine
a philosophy professor’s classes by setting up
“alternative” sessions for students who might want to transfer out of the classes after the professor had published letters to scholarly journals that denigrated the intelligence of blacks (Levin v Harleston, 966 F.2d 85 [1992])
Even so, not all speech by public university employees is protected Employees still may be disciplined for speech that does not involve
an area of public concern, as the courts have defined it In Dambrot v Central Michigan University, 839 F Supp 477 (E.D Mich 1993), aff’d, 55 F.3d 1177 (6th Cir 1995), the district court upheld the termination of a basketball coach who used the term nigger in a locker-room
Trang 7pep talk The university refused to renew the coach’s employment contract, arguing that his use of the term violated the university’s policy
on racial and ethnic harassment Although the court found that the school’s policy violated the First Amendment (for the same reasons as in Doe), it also found that the coach’s speech did not involve an area of public concern
A public institution may restrict religious speech by faculty if failure to do so would violate the First Amendment’s Establishment Clause (Bishop v Aronov, 926 F.2d 1066 [1991]) In Bishop, the U.S Court of Appeals for the Eleventh Circuit held that the University of Alabama could constitutionally restrict a profes-sor from discussing his religious views during class and could instruct him not to hold optional class sessions to discuss Christian perspectives
on academic topics The court noted that were the professor permitted to engage in these activities, the university would risk violating the Establishment Clause, which prohibits states from establishing religion and, by extension, extending preferential treatment to, or endorse-ment of, a particular religious view
Religion and Public Funding
The Establishment Clause prohibits states from establishing an official religion A public univer-sity may not denominate itself as a religious school, nor may the state directly fund a private religious school At the same time, the Free Exercise Clause prohibits states from restricting individuals in the practice of religion A public university may not permit all student groups except for religious groups to use its facilities
Maintaining a balance between the two clauses
is not simple, and it has generated controversy
in two principal areas: the extent to which the state may fund attendance at private religious schools indirectly, and the extent to which public schools may fund religious activities on campus directly
Public Funding of Private Religious Practice In
1971, the U.S Supreme Court decided Lemon v
Kurtzman, 403 U.S 602, 91 S Ct 2105, 29 L Ed
2d 745 (1971), which defined the scope of the Establishment Clause In Lemon, the court held that a state policy or practice violates the Establishment Clause if it fails to satisfy a three-part test: First, the policy must serve a secular purpose Second, the primary effect of the policy
cannot be to advance or inhibit religion Third, the policy cannot foster an excessive entanglement
of the state with religion
Unfortunately, the Lemon test is easier to state than to apply, and it has led to numerous lawsuits concerning the relationship of state-funding programs to private religious organiza-tions Generally, a state law that provides benefits to individuals without regard to reli-gion does not violate the Establishment Clause even if an individual uses the state benefits for a religious purpose For example, in Witters v Washington Department of Services for the Blind,
474 U.S 481, 106 S Ct 748, 88 L Ed 2d 846 (1986), the U.S Supreme Court held that a blind Washington resident was eligible for state vocational rehabilitation assistance, even though
he planned to use the funds to complete his religious training at a Christian college The court held that payment of public assistance by the state satisfied the Lemon test because the aid was provided directly to the individual, was not skewed toward religion in any way, and created
no financial incentive for students to undertake religious education Furthermore, the court noted that the primary effect of the assistance program was not to advance religion and that religious programs would not benefit in any significant or disproportionate way from the state program
In contrast, in Stark v St Cloud State University, 802 F.2d 1046 (1986), the U.S Court
of Appeals for the Eighth Circuit held that a state university violated the Establishment Clause by permitting education students to satisfy their student-teaching requirement at parochial schools The court noted that the public university approved the use of religious schools, including them on a list of appropriate schools for student teaching, and that because
of this, the university had entangled itself excessively with religion
Public Schools and Religious Activity Fund-ing of religious activities in public schools requires similar balancing The U.S Supreme Court held in 1995 that a public university may fund a student-run religious publication without violating the Establishment Clause
In Rosenberger v Rector of the University of Virginia, 515 U.S.819, 115 S Ct 2510, 132
L Ed 2d 700 (1995), a sharply divided court considered a Christian student group’s claim
Trang 8that the university’s refusal to pay the
publica-tion costs of its newspaper, even though it paid
the costs of printing other student publications,
violated the Free Speech Clause of the First
Amendment The university had convinced the
U.S Court of Appeals for the Fourth Circuit
that it had a compelling interest in not funding
the newspaper: specifically, to avoid violating the
Constitution’s Establishment Clause, which
prohibits the government from establishing
or promoting religion Before the U.S
Su-preme Court, the university backed off on this
argument and instead stated that it had a right
to be selective in its choice of recipients of
public funds (i.e., university student fees) The
court considered both arguments and found
that the university’s policy regarding the
dis-tribution of monies from student fees was
neutral, that is, it could not be seen as a policy
designed to advance religion; the court
there-fore concluded that the free speech rights of
the student publication prevailed and ordered
the university to pay the publication costs of the
Christian student group’s newspaper
Termination of Employment Claims
Colleges and universities have often been the
subject of lawsuits by former employees who
have been terminated Many of these claims arise
when an institution refuses to grant tenure to a
faculty member In most educational
institu-tions, teachers and other faculty members are
not guaranteed permanent employment when
they are hired for a teaching position The
institution generally requires the teacher or
professor to achieve certain goals, such as
publishing scholarly articles or demonstrating
superior teaching skills, within a prescribed
period of time, often six to eight years In state
institutions, the process for granting tenure is
usually prescribed by statute
At the conclusion of this time period, an
institution reviews the performances of the
teacher, professor, or other employee If the
review is favorable, the institution may award
tenure to the employee Although tenure does
not necessarily guarantee lifetime employment,
it provides considerable protection for the
employee from being terminated by the
institu-tion On the other hand, if the employee is
denied tenure, he or she will not be retained as
an employee of the institution
More often than not, disgruntled former
employees lose their cases when they contest
denial of tenure Many contest the tenure process, while others claim breach of contract
on the part of the institution Additionally, several courts have had to consider whether a college or university has violated the constitu-tional rights of an employee by denying him or her tenure For example, in Hendrich v Board
of Regents of University of Wisconsin System,
274 F.3d 1174 (7th Cir 2001), the complainant claimed that the University of Wisconsin at Whitewater had violated her equal protection and due process rights when the school denied her tenure The U.S Court of Appeals for the Seventh Circuit denied her claims, finding that she had failed to meet the necessary BURDEN OF PERSUASIONon these issues
FURTHER READINGS Census Bureau Statistical Abstract of the United States.
Available online at http://www.census.gov/compendia/
statab/; website home page: http://www.census.gov (accessed May 16, 2009).
Eisenberg, Theodore 2004 Civil Rights Legislation: Cases and Materials 5th ed Charlottesville, VA: Michie.
Kaplin, William A., and Barbara A Lee 1997 Legal Guide for Student Affairs Professionals San Francisco: Jossey-Bass.
——— 1995 Law of Higher Education 3d ed San Francisco:
Jossey-Bass.
Perry, Barbara A 2007 The Michigan Affirmative Action Cases Lawrence: University Press of Kansas.
“National Association of College and University Attorneys
and University Law Information available online at:
http://www.nd.edu/~jcul/current_issue.html (accessed June 15, 2009).
CROSS REFERENCES Religion; School Desegregation; Schools and School Districts.
vCOLLIER, WILLIAM MILLER William Miller Collier was born November 11,
1867, in Lodi, New York He graduated from Hamilton College with a bachelor of arts degree
in 1889 and a master of arts degree in 1892 He was the recipient of several other degrees from various institutions, including an honorary doctor of laws degree from New York University
in 1920; a doctor of CIVIL LAW degree from Wesleyan University in 1920; and a doctor of letters and humanities degree from Hobart College in 1920
After his admission to the New York bar in
1892 Collier established his law firm in Auburn and practiced law until 1903 From 1903 to
1904 he performed the duties of special assistant
Trang 9to the U.S attorney general where his main task was the enforcement of antitrust laws
In 1905 Collier entered the diplomatic field and for the next four years he served as U.S
minister to Spain Collier’s next field of endeavor was that of education He presented
a series of lectures onINTERNATIONAL LAWat New York Law School from 1912 to 1918 He became president of GEORGE WASHINGTON Uni-versity in that same year and served in this capacity for the next three years In 1921 Collier reentered the foreign service and served as ambassador to Chile until 1928
Collier was the author of several noteworthy publications, including Collier on Bankruptcy (1898); Collier onCIVIL SERVICELaw (1901); The Trusts: What Can We Do with Them—What Can They Do for Us? (1900); and The Influence
of Lawyers in the Past and in the Future (1921)
He died April 15, 1956, in West Caldwell, New Jersey
COLLISION The violent contact of one vehicle—such as an automobile, ship, or boat—with another vehicle Collision insurance is a type of policy that motorists purchase to cover property losses in the event of a car accident
A collision that does not result from the NEGLIGENCE of either vessel involved is consid-ered to be an inevitable accident In the event
of an inevitable accident, neither party is liable
to the other, but each bears his or her own individual losses Exclusion from FAULT is ordi-narily determined with reference to the safe-guards observed by the parties to the inevitable accident
COLLUSION
An agreement between two or more people to defraud a person of his or her rights or to obtain something that is prohibited by law
A secret arrangement wherein two or more people whose legal interests seemingly conflict conspire to commit fraud upon another person; a pact between two people to deceive a court with the purpose of obtaining something that they would not be able to get through legitimate judicial channels
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1861–65
U.S Civil War
1867 Born, Lodi, N.Y.
1892 Admitted to New York bar and established practice in Auburn, N.Y.
1898 Collier on Bankruptcy first published
1898 Spanish-American War
1903 Served as special assistant to the U.S attorney general, specializing in antitrust legislation
1905–09 Served as U.S minister
to Spain
1912–18 Presented lectures on international law at New York Law School
1914–18 World War I
1918 Became president of George Washington University 1921–28 Served
as ambassador
to Chile
1939–45 World War II
1961–73 Vietnam War 1950–53
Korean War
1956 Died, West Caldwell, N.J.
William Miller
Collier.
LIBRARY OF CONGRESS.
Trang 10Collusion has often been used in DIVORCE
proceedings In the past some jurisdictions made
it extremely difficult for a couple to obtain a
divorce Often a “sweetheart” agreement would
take place, WHEREBY a husband or wife would
commit, or appear to commit,ADULTERYor other
acts that would justify a divorce The PUBLIC
POLICY against collusive divorces is based on the
idea that such actions would conflict with the
effective administration by society of laws on
marriage and divorce and would undermine
marriage as a stabilizing force in society
Virtually all jurisdictions have adopted
no-fault divorce statutes or laws that allow a
couple to obtain a divorce without traditional
fault grounds, such as adultery or CRUEL AND
INHUMAN TREATMENT Because of this
develop-ment, collusive divorces should diminish in
number, because it will no longer be necessary
for persons seeking a divorce to resort to such
measures
The fundamental societal objection to
col-lusion is that it promotes dishonesty andFRAUD,
which, in turn, undermines the integrity of the
entire judicial system
COLOR
The appearance or semblance of a thing, as
distinguished from the thing itself
The thing to which the term color is applied
does not necessarily have to possess the
character imputed to it A person who holds
land underCOLOR OF TITLEdoes not have actual
title to it
COLOR OF LAW
The appearance of a legal right
The act of a state officer, regardless of
whether or not the act is within the limits of his
or her authority, is considered an act under
COLOR OF LAW if the officer purports to be
conducting himself or herself in the course of
official duties Under the CIVIL RIGHTS Act of
1871 (42 U.S.C.A § 1983), color of law is synonymous with STATE ACTION, which is con-duct by an officer that bears a sufficiently close nexus to a state so that the action is treated as though it is by the state
CROSS REFERENCE
Ku Klux Klan Act.
COLOR OF OFFICE
A description of an act by an officer done without authority under the pretext that he or she has an official right to do the act by reason of the officer’s position
An officer acts underCOLOR OF OFFICE when
he or she extracts a fee from another under the pretense that the office confers the authority
on him or her to do so Such conduct may constitute EXTORTION, a crime proscribed by statute in most states The penalty imposed on a public officer for extortion may include FORFEI-TUREof office in addition to a fine,IMPRISONMENT,
or both
COLOR OF TITLE The appearance of a legally enforceable right of possession or ownership A written instrument that purports to transfer ownership of property but, due to some defect, does not have that effect
A document purporting to pass title to land, such as a deed that is defective due to a lack of title
in the grantor, passes only color of title to the grantee
It has been held that in order to pass color
of title, the instrument appearing to pass title must be in good form, duly executed, and profess to pass good title
COLORABLE False; counterfeit; something that is false but has the appearance of truth