COLLEGES AND UNIVERSITIES

COLLEGES AND UNIVERSITIES

The term college is a general one that encompasses a wide range of higher-education institutions, including those that offer two- to four-year programs in the arts and sciences, technical and vocational schools, and junior and community colleges. The term university specifically describes an institution that provides graduate and professional education in addition to four-year post-secondary education. Despite these distinctions, the terms college and university are frequently used interchangeably in the United States.

The first institution of higher education in
the United States was Harvard College, founded
in 1636. At the time of the Revolutionary War,
nine colleges existed in the colonies—a number
that had tripled by the time of the Civil War. In
1876, the first true university in the United
States was established, with the founding of
Johns Hopkins, in Baltimore. The university for-
mat rapidly gained popularity, and prominent
private and state-run colleges soon assumed
university status. According to the Statistical
Abstract of the United States, 4,084 colleges and
universities operated in the United States in
1999.

U.S. colleges and universities fall into two
general categories: private and public. Private
institutions are usually corporations operating
under state charters. Although tuition and pri-
vate gifts and endowments provide much of
their financial support, most private colleges
and universities also receive some degree of gov-
ernment support. Many of the 2,000-plus pri-
vate colleges and universities in the United
States claim a religious affiliation.

Public institutions are established either by
state constitution or by statute, and they receive
funding from state appropriations as well as
tuition and endowments. Although the federal
government operates several institutions of
higher learning, such as the U.S. Military Acad-
emy and the U.S. Air Force Academy, it is pro-
hibited by statute from exercising direct control
over other educational institutions.

The Legal Climate

U.S. colleges and universities are governed
by many of the same laws that regulate the rest
of U.S. society. In addition, they have generated
a unique body of law. Educational institutions
reflect the legal climate of the rest of the coun-
try, but the importance of a good education has
elevated equal access, equal opportunity, and
ACADEMIC FREEDOM to a higher status than
they might otherwise assume.

Three general types of laws affect the opera-
tion of colleges and universities. State laws affect
public and private colleges and universities in
the absence of federal laws that supersede them.
Federal laws may affect public and private insti-
tutions, and they usually affect entities that
receive federal funding or that are subject to reg-
ulation under the COMMERCE CLAUSE of the
Constitution. The most common such laws are
statutes that prohibit discrimination. Finally, the
Constitution governs public, but almost never
private, institutions.

As state entities, public institutions must
conform to constitutional provisions that pro-
hibit the state from discriminating and from
denying constitutional rights. Thus,much of the
law of public institutions stems from constitu-
tional amendments such as the following:
â–  the Free Speech Clause of the FIRST AMEND-
MENT, which guarantees that the government
will not interfere with FREEDOM OF
SPEECH
■ the Free Exercise Clause of the First Amendment,
which ensures that the government
will not interfere with or outlaw religious
expression
■ the Establishment Clause of the First
Amendment, which prohibits the government
from endorsing or establishing a state
religion
■ the EQUAL PROTECTION CLAUSE of the
FOURTEENTH AMENDMENT, which guarantees
that a state will enforce its laws equally
with respect to all persons, with certain
exceptions
■ the DUE PROCESS CLAUSE of the Fourteenth
Amendment, which requires the state to
provide certain procedural safeguards before
depriving an individual of a liberty or property interest. State-run institutions also are
subject to state and often federal law.

Private institutions are not governed directly by the Constitution. Instead, they are
regulated solely by state and federal law. Since
the mid 1960s, federal laws enacted pursuant to
Congress’s power to regulate interstate commerce
have enabled the federal government to
regulate much private university activity that
the Constitution cannot reach directly. Such
federal statutes often protect against discriminatory
behavior not otherwise foreclosed by
the Constitution, such as discrimination based
on age or disability. Accordingly, a university
may not discriminate merely because it is a private
entity. The most important statutes governing
the behavior of private universities are
the same statutes regulating public accommodations,
employment, and federally funded
activities:
■ Title VI of the Civil Rights Act of 1964, 42
U.S.C.A. § 2000a et seq., which prohibits discrimination
on the basis of race by entities
that receive federal funding
■ Title VII of the CIVIL RIGHTS ACT of 1964,
which prohibits discrimination on the basis
of race, color, national origin, gender, or religion,
by entities employing a certain number
of workers (generally 15)
■ Title IX of the Education Amendments of
1972 (codified in scattered sections of 7, 12,
16, 20, and 42 U.S.C.A.), which prohibits
discrimination on the basis of gender by
entities that receive federal funding
■ the Age Discrimination in Employment Act,
29 U.S.C.A. § 621 et seq., which prohibits
employment discrimination on the basis of
age against individuals between the ages of
40 and 70 by entities employing a certain
number of workers (generally twenty)
■ the Americans with Disabilities Act of 1990,
codified in scattered sections of 2, 29, 42, and
47 U.S.C.A., which prohibits discrimination
on the basis of disability in public accommodations,
transportation, and employment, by
a wide range of privately owned entities
■ the Rehabilitation Act of 1973, 29 U.S.C.A.
§ 701 et seq., which prohibits discrimination
on the basis of disability by entities that
receive federal funding
■ the Higher Education Act, 20 U.S.C.A. § 403
et seq., which establishes federal financial aid
programs and the conditions accompanying
them; the EDUCATION DEPARTMENT (until
1980, the Department of Health, Education,
and Welfare) administers Title VI, Title IX,
and the Higher Education Act.

Racial Discrimination

The Equal Protection Clause and Public
Institutions The Equal Protection Clause of the
Fourteenth Amendment prohibits a state from
denying to individuals the equal protection of
the laws. This clause requires, among other
things, that a state and its instrumentalities may not treat members of different racial or ethnic backgrounds differently unless the discriminatory action is necessary to achieve a compelling government purpose and is narrowly tailored to satisfy that purpose. Despite the Fourteenth Amendment’s passage in 1870, public higher education in the United States remained legally segregated on the basis of race until the mid1950s. This de jure (i.e., legally sanctioned) SEGREGATION may be traced to a pre-Civil War decision by the Massachusetts Supreme Court upholding the legality of segregated schools in the heart of abolitionist territory (Roberts v.
Boston, 59 Mass. [5 Cush.] 198 [1849]).
After the Civil War, Congress outlawed SLAVERY
and made discrimination by the state
unconstitutional, with the Thirteenth and Fourteenth
Amendments to the Constitution. Not
much changed, however, as states, obligated to
provide all citizens with the equal protection of
the laws, devised bifurcated educational systems
that provided white citizens with one set of
schools and black citizens with a supposedly
parallel, but grossly underfunded and qualitatively
inferior, set of schools. These systems were
approved by the U.S. Supreme Court as “separate
but equal” in Cumming v. Board of Education
of Richmond County, 175 U.S. 528, 20 S. Ct.
197, 44 L. Ed. 262 (1899).
Public centers of higher education also
remained segregated and unequal. Many states
established dual systems of higher education. A
number of states established whites-only flagship
campuses, with separate blacks-only campuses
that received less funding and fewer
resources; others simply refused to admit black
students.
In the early twentieth century, the National
Association for the Advancement of Colored
People (NAACP) began its attack against segregated
schools at the university level, where it
won a series of cases that eroded the SEPARATEBUT-
EQUAL principle. In the first of these cases,
decided under the Equal Protection Clause, the
U.S. Supreme Court ruled that a state could not
avoid training qualified black law students by
providing them tuition payments to out-of-state
law schools rather than permitting them to
attend an in-state school (Missouri ex rel. Gaines
v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed.
208 [1938]). Next, in McLaurin v. Oklahoma
State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L.
Ed. 1149 (1950), the Court held that the University
of Oklahoma could not force its only black
graduate student to sit in a hallway adjoining the
classroom in which a course was offered, nor
could it require the student to sit behind a railing
marked “Reserved for Colored.” Finally, in
Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94
L. Ed. 1114 (1950), the Court found 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 continues
more than 40 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 over 80 percent white and previously all-black schools remained over 90 percent black. The Court found that the state’s policy of requiring higher American College Test (ACT) scores for admission 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 implementing 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 education in several states (Knight v. Alabama, 14 F.3d 1534 [11th Cir. 1994]; United States v. Louisiana, 9 F.3d 1159 [5th Cir. 1993]).

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
accommodations, 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 the CIVIL RIGHTS MOVEMENT,
many universities began adopting AFFIRMATIVE
ACTION policies. 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 beginning, many institutions employed quotas
that reserved a certain number of spots for
applicants of racial minorities. Other institutions
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 University
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-pointaverage threshold established for other candidates.
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.
Nonetheless, 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 maintained
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 also 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 scholarships became the
focus of lawsuits.
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 Scholarship program, a
merit-based scholarship 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 institution’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
past discrimination.

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 discrimination,
they need only demonstrate that discrimination
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
throughout 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 individual plaintiff who had sought admission
to the Citadel, whereas VMI was brought by
the DEPARTMENT OF JUSTICE and 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-butparallel,
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 genderbased
classifications are not completely forbidden
by the Equal Protection Clause, but it stated
that Virginia had failed to provide “exceedingly
persuasive justification” 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
amended 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, and SEXUAL HARASSMENT. For example,
in Sharif v. New York State Education
Department, 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 scored an average of 60 points
lower on the test than boys did, 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 performance
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.And 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 educational 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 concerned that
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 that would be
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 opportunities
for male and female students are provided
in numbers substantially proportionate
to their respective enrollments; or Where the members of one sex have been
and are underrepresented among intercollegiate
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 underrepresented
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 programs 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.
Although Title IX continues to have many
critics, the effect that it has had upon women’s
athletics is practically unquestioned. Twentyfour
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 women’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. Although several
professional women’s basketball leagues had
been established, 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, 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 spectator
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 constraints. 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 both to add
women’s programs and to retain smaller men’s
programs.
Policies under the administration of President
GEORGE W. BUSH have come 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.
Although the commission found that opportunities
should be improved for all competitors,
women’s groups claimed that the report undermines
the importance of improving opportunities
for women’s programs specifically.

Academic Freedom: The Right to Speak Freely
The First Amendment prohibits the federal
and state governments from infringing on freedom
of speech. Not surprisingly, 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 importance 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 like the following:
■ A fraternity fund-raising “slave auction” featuring
fraternity members in blackface who
were “sold” to provide services to bidders
■ The distribution at a state school of leaflets
warning, “The Knights of the KU KLUX KLAN
Are Watching You”
■ A poster made by a student and hung on her
dormitory room door, listing “homos” as 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 educational
opportunities based on any number of characteristics,
especially race, national origin, gender,
and religion. The University of Michigan
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 constitutionally
protected, such as imminent threats of violence,
but also swept under its umbrella speech that
might be controversial or even offensive but
otherwise constitutionally protected. “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 unfettered
interplay of competing views is essential
to the institution’s education mission.
The court then observed that because Michigan’s
policy was so vague that it encompassed 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 University, a
state university, had violated the Sigma Chi Fraternity’s
First Amendment rights by suspending
its privileges as a university organization 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. Generally, 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 disciplined 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 pep
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 also 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 professor
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
endorsement of, a particular religious view.

Religion and Public Funding
The Establishment Clause prohibits states
from establishing an official religion. Thus, a
public university 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.
Thus, 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 statefunding
programs to private religious organizations. Generally, a state law that provides benefits
to individuals without regard to religion
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
Funding 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 that the university’s
refusal to pay the publication 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. Supreme 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 distribution of monies from student
fees was neutral, that is, that it could not be
seen as a policy designed to advance religion; the
Court therefore 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 institutions,
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 institution.
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 constitutional
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
PERSUASION on these issues.

FURTHER READINGS
Census Bureau. Statistical Abstract of the United States. Available
online at (accessed
November 11, 2003).
Eisenberg, Theodore. 1996. Civil Rights Legislation: Cases
and Materials. 4th ed. Charlottesville, Va.Michie.
Giamatti, A. Bartlett. 1988. A Free and Ordered Space: The
Real World of the University. New York: Norton.
Grossman, Joel B., and Richard S.Wells. 1988. Constitutional
Law and Judicial Policy Making. 3d ed. White Plains,
N.Y.: Longman.
Journal of College and University Law. Various issues.
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.

CROSS-REFERENCES
Religion; School Desegregation; Schools and School Districts