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Higher Ed Law: Winter 2011: Attack Outline

Academic Freedom

o What gets taught
o Who teaches
o What to teach
o How its taught

Public concern speech test:
Threshold question is whether speech is done as an employee to fulfill a job function.
o If so, it is not protected
Note: this has never been specifically tested on professors in a classroom setting, we arent
sure if Garcetti would prevent that speech from being protected
o If speech is about an issue of public concern, then it is protected
o BUT if it disrupts the workplace, there is less 1
st
amendment protection
Potentially even if a disruption has not occurred yet
o If speech was made to public audience (vs. private audience, i.e. you boss), more protection. SC said
saying something of public concern in private context still was protected
o Are you speaking as public citizen or private employee?
B/c speech can be imputed to school
What platform do you use to make the speech (i.e. school webspace suggests your speaking as
an employee)
o If you list speaking engagement as reason for promotion, probably as employee
- Strict scrutiny standard for abridging free speech
- Time, place, or manner restrictions must withstand intermediate scrutiny. Note that any regulations that would
force speakers to change how or what they say do not fall into this category (so the government cannot restrict
one medium even if it leaves open another). Time, place, or manner restrictions must:
o Be content neutral
o Be narrowly tailored
o Serve a significant governmental interest
o Leave open ample alternative channels for communication


1940 Statement of Principles on Academic Freedom and Tenure

Purpose it to protect the common good (not just the interests of individual faculty or institutions)

The common good depends upon the free search for truth and its free exposition; an unfettered ability to figure out
how the world works and disagree.

1. Tenure is a means to certain ends:

Freedom of teaching, research, and extra-mural activities.

A sufficient degree of economic security to make the profession attractive to men and women of ability.

2. Academic Freedom includes rights and corresponding responsibilities:

a. Teachers are entitled to full freedom in research and in the publication of results, subject to the adequate
performance of their other academic duties BUT research for pecuniary return should be based upon an
understanding with the authorities of the institution. Teachers are stewards of knowledge and are not there
only to promote their self-interest.

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b. Teachers are entitled to freedom in the classroom in discussing their subject, BUT they should be careful not to
introduce into their teaching controversial matter which has no relation to their subject (see laterthe Dilawar
Edwards case at California U. of PA).

Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in
writing at the time of the appointment. (Limitations Clause)

* Note statement #3 (1970): Most church-related institutions no longer need or desire the departure from
the principle of academic freedom implied in the 1940 Statement, and we do not now endorse such a
departure. Question: Is that true today?

c. College and university teachers are citizens, members of a learned profession, and officers of an educational
institution. When they speak or write as citizens, they should be free from institutional censorship or
discipline, BUT their special position in the community imposes special obligations. As scholars and
educational officers, they should remember that the public may judge their profession and their institution by
their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show
respect for the opinions of others, and should make every effort to indicate that they are not speaking for the
institution.
Rabban: Constitutional academic freedom thus may provide professors more protection for
professional speech and less protection for unprofessional speech than the free speech clause would
afford the same statements by nonacademics.

These rights apply to all faculty whether tenured or not.

This statement is incorporated into most faculty handbooks, and in many faculty collective bargaining agreements
as well. Why is this important?

The First Amendment to the U.S. Constitution applies to individual rights vis--vis public institutions only; First
Amendment rights do not exist at private institutions.

Even at public institutions, rights of free speech are limited by the public concern test a balancing test that
weighs the interests of the institution v. the interests of the speaker.

Note the relationship of DUE PROCESS to academic freedom procedures tend to help curb arbitrary and
capricious decision-making, and to allow for multiple voices and various points of view to be considered.

Note the signatories over the years.


Sweezy
- D says he wont answer whether he said communist things at a lecture
- Court says you cant ask him these kinds of questions and then hold him in contempt when he doesnt answer
- Frankfurters concurrence: four essential freedoms
o See above

Levin
- Guy writes racist stuff, school creates shadow class and lets people switch out (though no student
complained)
- School also puts together board to fire professor.
- Professor doesnt take some speaking engagements
- There are protestors outside of classroom
- Page 88: courts deference to academic processes
- Distinction b/t saying your views have no place somewhere (after creating committee to evaluate them) and
b/t saying he doesnt represent you
- Court says this chilled his speech
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The court found no evidence that Levins expressions of theories outside the classroom harmed the
students and the educational process within the classroom. It focused on the chilling effect on speech
resulting from CUNYs actions. Adding the additional shadow sections did not have a legitimate
educational purpose.

Garcetti
When state is employer, state is not acting as sovereign when restricting my speech as employee.

If employee is speaking as employee, we dont get to public concern test

Jeffries
- African-American prof says disparaging thing about Jews
- Board of trustees vote to limit his term as department chair
- As department chair he has ministerial position. A position between faculty and policymaking
- You could mess with him in policy-making role completely. You can sort of mess with him in his ministerial
role= slight tasks, not significant role.
- Comes out differently than Levin. They say if the institution believes speech will cause disruption, even if it
hasnt yet, they can act to prevent a disruption
- Ostensibly academic freedom applies to all in the same way, but pragmatically not so much
- Private institutions are freer to fire for speech about public or private concerns
- If speaker is saying something that relates to public or is in public forum, there is more protection.


Urofsky
Court is not even convinced there is academic freedom, everything is ephemeral
If there is academic freedom, it only applies to institutions and not to faculty
Some say this is right: there should be no special rights for faculty

When push comes to shove, institution trumps faculty members

Garcetti
When state is employer, state is not acting as sovereign when restricting my speech as employee.

If employee is speaking as employee, we dont get to public concern test

Court is saying to public employers that institution can decide to fire someone because they arent speaking the way
they want you to speak. Challenge for faculty is that they are paid to research/publish, in sum speak. Maybe about
things we dont understand b/c they are shaping knowledge.

Hong
Prof sues b/c he was denied a salary increase after he made critical statements of the hiring and promotion of other
profs. Court rules against him, saying the speech was in the course of his job duties and was thus not protected by 1
st

amendment. The court says that since the comments were about internal hiring practices, there was no issue of public
concern as well. Woman doesnt have 1
st
amendment rights when she uses company grievance procedure to complain
about harassment. Should have gone outside to sue.

Renken
Renken is prof who complains about what he thinks is the mishandling of grant money. The school returned the grant
money and lowered his pay and he sued for illegal retaliation. He viewed the public schools use of public finds as an
issue of public concern. But the 7
th
circuit ruled the statements were not protected because he made them as a public
college professor and they related to his job. He would have had to be speaking in his private capacity.

Counter-argument: If you arent getting research $ if you complain, you arent researching and arent getting promoted

Response: Go teach somewhere else
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Tenure

What is Tenure?
o AAUP 1940 Policy: After the expiration of a probationary period, teachers . . . should have permanent
or continuous tenure, and their service should be terminated only for adequate cause . . . or under
extraordinary circumstances because of financial exigencies
o Does not guarantee lifetime employment as a matter of law. In a lot of places, it is very hard to lose it,
but it's still not a guarantee
What is the point of tenure?
o Protection of Academic Freedom
o Protection of Economic Security: provides incentives for most capable people to try to go down this
track
Debate: Is Tenure Necessary to Protect Academic Freedom?
o Yes.
Lack of job security chills speech
More flexible in what you study
Want to draw the best people into these positions offer them stability in exchange for money
Greater investment in the institution by the professor
Prevents cycling through of teachers
o No.
System is abused. Until you have tenure, a lot of pressure to conform to the university. It
uses you up until that point.
Tenure makes faculty difficult to manage.
Debate: Does Tenure Perform its Intended Function at Too Great a Cost?
o What are the costs?
1. Long term financial commitment
2. Risk that tenure decision will be unwise deadwood
Authors argue that this does not function so poorly as to warrant removal
o Gains from tenure that offset costs:
Without tenure, the uncertainty of employment would require higher salaries
Tenure as a social contract
Possible to commit to very long-term projects
Promotes efficiency be diminishing uncertainty
Monitoring takes up resources
Ties professors to their jobs so they wont leave
Relatively new concept. Prior to 1915, faculty could get fired for taking a position the president of the college
did not support. AAUP really pushed for it. But now it is eroding.
Current Challenges to Tenure
o Proliferation of Non-Tenure Track Positions (i.e. adjunct, part-time faculty)
o Evaluation of Tenured Faculty
Post-tenure review policies are on the increase
Johnson v. Colorado State Board of Agriculture: faculty challenged the imposition of a
post-tenure review policy as unconstitutional because the policy retroactively change their
tenure contracts. Court held that the post-tenure review merely a procedural change that
does not take away any vested right and imposes no new obligations or duties
o Because jobs are scarce, people will accept less
Many people are already tenured and now there is no more mandatory retirement new wave
of people accepting the job for less
o More people are accepting higher pay in exchange for not having tenure
Acceptable Grounds for Dismissal of Tenured Faculty
o Dismissal for Cause
Neglect of duty
Incompetence
Professional or personal misconduct
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o Program Discontinuance
When an academic program or department is eliminated, the appointments of affected faculty
may be terminated when no alternative positions exist at the institution.
o Financial Exigency
When the institution faces a severe crisis threatening the survival of the institution as a whole,
tenured faculty appointments may be terminated if no alternative positions exist for the
individual at the institution
Alternatives to Tenure The Buy Out Option:
o University of Central Arkansas:
President proposed an alternative to tenure that would provide a new assistant professor
with approximately $20,000 more in initial base salary by giving up eligibility for tenure
A lot of backlash to this proposal
o Boston University School of Management:
Created an alternative plan that provides for a ten-year renewable contract and a salary
premium of 8-10% for professors who have, or otherwise eligible to have, tenure. A total of 9
faculty members accepted the alternative-to-tenure K
Collegiality
o Colleges and universities customarily examine faculty performance in three areas of:
Teaching
Scholarship
Service
o Many have begun to add a fourth criterion:
Collegiality
o AAUP believes this development should be DISCOURAGED rather should be a part of the evaluation
of teaching, research and service
Collegiality is not a distinct capacity to be assessed independently of the traditional
triumvirate of teaching, scholarship and service. It is rather a quality whose value is
expressed in the successful execution of these three functions.
o Arguments for Use of Collegiality:
Legitimate concern that professors cooperate with their colleges
Chitwood v. Feater: CoA 4
th
circuit case which upheld the nonrenewal of several nontenured faculty members
whose own affidavits reflected a pattern of bickering and running disputes with department heads. The court
found that a college has a right to expect a teacher to follow instruction and to work cooperatively and
harmoniously with the head of the department
MOST courts have addressed the issue of a faculty members working relationship
with colleagues in tenure, promotion, or termination decisions and have concluded
that collegiality is an important factor to take into account
AAUP recommends against the identification of collegiality as a distinct criterion for tenure
BUT it also counsels faculty members n its Statement on Professional Ethics to have due
respect for the opinions of others
A persons ability to work with others in a civil and positive manner is taken into account in
almost all hiring and promotion decisions outside the academy, and the college campus should
be no different
o Arguments Against:
Breach of K
Faculty plaintiffs have argued that considering collegiality in tenure and termination
decisions constitutes a breach of K when it is not identified specifically as a distinct
criterion in the employment K or the institutional tenure policy.
o Courts have overwhelmingly rejected this argument
University of Baltimore v. Iz: Institutions promotion policies defined the criteria
for tenure and promotion as teaching effectiveness, research and scholarship and
service to the university, profession and community. During Izs review, concerns
about her collegiality were raised and she was not given tenure. She sued on a breach
of K claim. University contended that collegiality was inherently included in the
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tenure criterion. Court decided that collegiality is a valid consideration for tenure and
that it is implied within the criteria that are specified
Bresnick v. Mahattanville College: Bresnick sued after he was denied tenure based
on collegiality (criteria only specified service, teaching and scholarship). Court ruled
in favor of the college. Held that nothing in Bresnicks contractual relationship wit the
college prevented the institution from considering collegiality as it evaluated his
service to the college.
Might also be used as a pretext for discrimination
People claim that collegiality is a vague and amorphous term that, even in the absence
of intentional discrimination, its use can subtly and adversely affect the chances for
tenure of women and minorities
o Court have decided in favor of universities in almost every discrimination
case in which collegiality was raised
Babbar v. Edabi: Babbar sued when denied tenure claiming discrimination. Court
ruled in favor of University, finding that Babbar presented no evidence showing that
his denial of tenure stemmed from his national origin or religion. In fact, the record
was replete with evidence that the university denied him tenure because of perceived
deficiencies I his research and his inability to get along with his colleagues
Jawa v. Fayetteville University: court upheld the termination of a tenured professor
who sued, claiming that the university had dismissed him because of his race and
national origin. Court found that he was uncooperative, inconsiderate, and more.
Stein v. Kent State University: court upheld reliance on collegiality, finding that it
was not a pretet for discriminatory treatment
Courts deference to the Universitys decisions regarding who can teach
People worry that relying on collegiality chills faculty debate and stifles dissent on campus
Term is so vague and amorphous that it provides no specific guidelines for behavior
Might be confusion between term collegiality and personality: overemphasis on a
pleasing personality could be used as a smokescreen for punishing unpopular ideas or
behavior
o Bernard: not aware of a single case where an institution was not allowed to use collegiality in its
decisions
Court say: not guaranteed tenure it is not a promise
Cases:
o University of Nevada, Reno v. Stacey
Court held that a state universitys grant or denial of tenure to a professor is a discretionary
decision, and therefore, the decision does not consitute a breach of a universitys contract with
a professor. Also that a state university is statutorily immune from a suit attacking the proper
exercise of its discretion
o LaForge v. State, University System
Court determined that as a non-tenured professor, plaintiff has no constitutionally protected
due process interest in the procedures established by the university for making tenure
decisions
o McClure v. Nevada
Plaintiff alleged that secret letters were solicited from faculty and staff as part of her review.
Reviewed for collegiality which was not ordinarily done.
Court held that University has broad discretion in deciding tenure by determining that
collegiality can be a factor in such a decision
McClure had implicit notice when she was hired that she would be evaluated based on
collegiality
1. Set out as an aspect of the codes service requirement
2. Applicants expect subjectivity in the tenure review process
o University of Pennsylvania v. EEOC
Faculty member sued for race, sex, and national origin discrimination under Title VII after
having been denied tenure
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US Supreme Court Held:
Common-law privilege would not be recognized to protect confidential peer review
materials from disclosure; and
First Amendment right of academic freedom would not be expanded to protect
materials from disclosure

Copyright

Purpose
o Advance public learning
Most people mistakenly assume it is some other purpose
o Article I, Section 8, clause 8: The Congress shall have Power . . . To promote the Progress of Science
and the useful Arts, by securing for limited times to Authors and Inventors the exclusive right to their
respective Writings and Discoveries.
o Copyright is outside the commerce clause, which is why there is a separate copyright clause
Policy Concern
o Balances rights, needs and desires among
Authors and copyright holders
Publishers and distributors
Users and the public
Requirements
o Original
Not copied and a minimal degree of creativity
o Work of authorship
Including not only literary, but musical, dramatic, choreographic, pictorial, graphic, sculptural,
audiovisual, and architectural works
o Fixed in a tangible medium of expression
Sufficiently permanent to permit it to be perceived for a period of more than transitory
duration
o Attaches automatically at creation
Does NOT require:
Notice
Registration
Publication
But notice and registration do provide certain advantages
Scope
o Default rule-
The creator is the copyright holder.
If two or more people jointly author a work, they are joint holders (not to be confused with
weed holders) with equal rights
o Independent Contract- falls under the default rule
o Exception
Work for hire
Employer is deemed author even if author did all the work
Universities usually make exceptions for faculty and transfer the copyright to them
o Rights of copyright holder ( 106)
Reproduction of work in whole or in part
Preparation of derivative works (translations, musical arrangements, sound recordings,
second editions, etc)
Distribution of copies to the public
Public performance of the work
Public display of the work
o Permissions and Transfers
106 rights are divisible
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License- permission to exercise one or more of the 106 rights in specified ways
Transfer- Assignment of control over one or more of the 106 rights
Transfer must be in writing involving both parties
Transfers and exclusive licenses must be in writing and signed by the holder
o COPYRIGHT DOES NOT GIVE THE OWNER COMPLETE CONTROL OVER ALL POSSIBLE USES OF THE
WORK. IT GIVES A LIMITED SET OF RIGHTS
o Some things are uncopyrightable
Facts and ideas
Processes, methods, systems, procedures
Federal government documents
Duration
o Protects all original works (including unpublished works) from the moment they are fixed in a tangible
medium of expression for
The life of the author plus 70 years
Or 95 years for works for hire
o Public Domain (after copyright term passes)
106 rights no longer attach
Copyright v. Plagiarism
o Copyright protects only the expression, not underlying facts or ideas
Copying facts or ideas might be plagiarism but its not copyright infringement
o Crediting the source is not a defense to copyright infringement
Not crediting the source is plagiarism
Infringement
o Up to $150,000 in civil damages, plus attorneys fees for each infringement
o Criminal fines and imprisonment are possible
o It is not infringement if
You are the copyright holder
You have express permission
You have an implied license
The work is uncopyrightable or otherwise in the public domain
There is a specific statutory limitation (example- fair use)
Fair Use
o Depends on a balanced application of four factors
Purpose and character of the use
Personal/educational/transformative v. commercial use
Nature of the copyrighted work being used
Factual v. creative
Amount and substantiality of the work being used
Small v. large, qualitatively and quantitatively
Effect of the use on the market for that work
Not of your individual use, but of the type of use\
Copyright and Faculty (Gorman)
o Historically universities didnt really care about professors retaining copyright because it wasnt
lucrative. Now that is changing with the advent of software and multimedia creations
o Universities often declare ownership of works that are prepared with substantial use of university
materials or facilities
o Some universities assert that faculty creations are work for hire
However, this goes against the assumptions and practices of the academic community and
several court cases
Only where the university explicitly directs the creation of a work should it fall under the work
made for hire rule
Case
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o Weissmann v. Freeman- Parties worked together as researchers. Weissmann authored an article for a
chapter in a book derived from previous papers jointly written by the parties. Freeman then used that
chapter in a presentation and put his own name on it
Court held that Weissmanns paper was a derivative work and Freeman did not have the right
to use it simply by virtue of having been involved in earlier research on the same subject
Shows how sticky joint authorship is in a copyright setting

Patent
Purpose
o Constitution- Same as coyright- T oadvance the state of technology available to the public
o Supreme Court
To foster and reward invention
To promote disclosure of inventions, to stimulate further innovation and to permit the public
to practice the invention once the patent expires
Stringent requirements for patent protection seek to assure that ideas in the public domain
remain there for the free use of the public
Scope
o Patents protect Process, machine, manufacture, or composition of matter (or any new and useful
improvement thereof). ( 101)
o Everything under the sun that is made by man (SC, 1981)
o NOT abstract ideas, laws of nature, and natural phenomena
o Controversial patentable subject matter
DNA- Because it has been manipulated by man, it can be patented
Software/business methods- Needs to cover a machine or be physically transformable to be
covered by patent
Requirements- To secure protection, must have the following
o Useful
o Novel
Filing application before publicly disclosing is important to meet the novelty requirement
US law gives one year from the first public disclosure of the invention to file a patent
application
European law does not.
o Nonobvious
SC in KSR v. Teleflex made it easier to provie a claimed invention would have been obvious to
a person of skill in the art in light of what was known in the art
Raised the threshold for what was nonobvious
o Enabling Disclosure
Rights
o Negative right- Gives you the right to exclude others
o Exclusive right to manufacture, sale, or use the invention
o Good for twenty years from the date of filing the patent application
Patent Owner
o Initially the inventor
o Anyone else contractually granted rights
o No work for hire doctrine
Infringement
o For infringement to occur, the infringing party must be engaged in activity covered by a claim of the
patent for which a proper license was not obtained
o Doctrine of Equivalents- Infringement occurs if one copies the patent in substance (device performs
substantially the same function in substantially the same way)
Bayh-Dole/Tech Transfer-
o When universities produce inventions with federal funds, they own and can license them
Must reserve research rights and government rights
Share royalties with inventors
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Require that licensees diligently seek to use the technology and make the products in the US
Preference for small business
o Purposes
Use ownership to provide incentives for private investment in developing technologies
Unify national patent policy- cut down on bureaucracy
Increase use of federally-funded technologies
Stimulate small businesses
o Results
Extremely successful
Many new companies
Increased funding
Important tech breakthroughs
o Principles of University Tech Transfer
Main goal is to have the outside world use our inventions for the public good.
Enhance likelihood that discoveries will reach the public
Promote new research collaborations for faculty
Help attract entrepreneurial faculty to the University
Fund new research and teaching programs
Stimulate economic development
Case
o Stanford v. Roche- Inventor joins Stanford and agrees to assign inventions to them. He then signs an
agreement with private company saying he will assign and hereby assigns rights in inventions
derived from work there. The NIH funds his research and he invents something fancy. Stanford files
patent application and attempts to retain title under Bayh-Dole.
o Court holds that lack of written assignment prevents Stanford from owning it now its on appeal in
the SC

Affirmative Action

History and Cases
o Sweatt v. Painter
Test case where an African America student applied to the University of Texas Law School.
Didnt admit him, instead set up another one for African American students
Court look at intangibles qualities that are not objective (facilities, reputation, interaction,
alumni) play an important role and are difficult to replicate
o Brown- Declared separate but equal unconstitutional
Beginning in 1960s, schools slowly began using race as admissions factor
o Bakke-
UC Davis Medical School (newly formed) set aside 16/100 seats for historically under-
represented groups. Bakke (white guy) sued.
Court said that while remedying discrimination is a compelling interest, must be remedying
discrimination at your institution. Here, no history of discrimination so no compelling interest
no de facto discrimination
Powell- There is educational benefit to diversity but a quota system is not constitutional
o Hopwood- Texas law school admissions program was shut down because of affirmative action
First successful affirmative action suit since Bakke
SC denied cert
o Grutter
Holistic review process for law school admissions.
Many corporations/military filed amicus briefs stating the importance of the value of diversity
in education
Law school claimed this allowed for critical mass
Counterargument- Critical mass is a minimum quota
SC held constitutional because holistic review is narrow tailoring
OConnor- Diversity still matters. Maybe in 25 years it wont. Speaks to narrow tailoring
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o Gratz
Point system where points were allocated for various factors including being a member of a
historically under-represented minority
SC held unconstitutional because it was not narrowly tailored
Suggestion was raised to use top 10 percent rule like in Texas. However, this works only
where there is heavy high school segregation and where there is not a lot of out of state
students
o Two Michigan cases allowed
Test which system was preferable
Point system- stability, efficiency, fairness related to standardization
Holistic review- Individualized attention
o Prop 2
Legislation in MI in response to Grutter and Gratz
Prohibits preferential treatment on basis of race in education, employment, etc. by state
o Fisher v. University of Texas, Austin
University employs a two-pronged approach to admissions: 1. Admits everyone in the top 10
percent of their class, and 2. For those not admitted under the top 10 percent rule, University
allowed race as one of the many factors considered in admissions
Plaintiffs argued that this policy should not have been implemented absent evidence of de jure
discrimination by university, policy allowed for racial balancing in violation of general
prohibition against quotas, and the university achieved a critical mass under the top 10
percent rule.
Court upheld the Texas system.
The more stringent strong basis in evidence standard advocated by the appellants was not
required under Grutter, the Universitys policies did not amount to unconstitutional race
balancing or quotas, and the panel determined that the success of the Top Ten law did not
eliminate the Universitys prerogative to consider race in order to meet its diversity
objectives. Because these policies were narrowly tailored (they involved the careful and
nuanced consideration of multiple factors, only one of which was race) and served a clearly
established state interest in promoting diversity in education, the panel found the admissions
policies constitutional under the Equal Protection Clause.

Legal Principles
o Racial Discrimination violates EPC of 14
th
amendment and receives strict scrutiny
Compelling interest
Diversity- The compelling interest is the educational benefit of diversity, not diversity
itself
Remedying past institutional discrimination
o De jure v. de facto segregation
Narrowly tailored

Financial Aid Issues
o Following Grutter and Gratz, schools had to look at their financial aid policies

Many schools adopted UM Law Schools admissions policies
o Four Goals of Financial Aid:
o Types of Financial Aid Programs:
Race Exclusive
Must be a member of a protected class
Race Targeted
The university knows that the program will lead to 85% of a protected race
Is this sort of program OK?
o Depends on the intent
Race as a plus factor
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Race conscious
Race blind
o What is the source?
University funding
Outside source

Sexual Harassment

Three overarching ideas:
o 1. Discriminatory or harassing behavior
o 2. Freedom of speech v. harassment (speech codes)
o 3. Academic freedom v. harassment (Jane Gallop, Cohen v. San Bernardino)

The Law
o Title VI Protects people from discrimination based on race, color or national origin in programs or
activities that receive federal financial assistance
o Title VII Prohibits discrimination by covered employers on the basis of race, color, religion, sex or
national origin (also applies to private actors who hire more than x number of employees)
Strict liability on employers in cases that result in tangible employment actions, such as
discharge, demotion, etc.
Employer is vicariously liable for actions of supervisor against employee in creating hostile
environment
If no tangible employment action, employer can defend itself
By showing that it took reasonable steps to prevent harassment and that plaintiff
unreasonably AND
Plaintiff unreasonably failed to take advantage of any preventative or corrective
opportunities
o Title IX No person shall, on the basis of sex, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any education program or activity receiving federal
financial assistance

Forms of harassment and discrimination
o Different treatment (e.g., differential grading based on race)
Four Elements:
1. Did an official or representative of a recipient treat someone differently in a way
that interefered with or limited the ability of the student to participate in or benefit
from a program or activity of the recipient?
2. Did the different treatment occur in the course of authorized or assigned duties or
responsibilities of the agent or employee?
3. Was the different treatment based on race, color or national origin?
4. Did the context or circumstances of the incident provide a legitimate,
nondiscriminatory, nonpretextual basis for the different treatment?
If Qs 1-3 are answered yes, and 4 is answered no OCR will find violation
If Qs 1-4 are answered no OCR will find no violation
o Quid pro quo sexual harassment
This for that.
o Hostile environment
Conduct of a sexual nature that is severe, persistent or pervasive enough to create an
environment that a reasonable person would find hostile or abusive, and that limits the
individuals ability to participate in or benefit from his or her employment or education
George Mason Case- Student offended by how her professor taught the class, and there were
points set aside for participation.
OCR says that faculty will sometimes have to use words that will be offensive or off-
putting, but it isn't problematic if it doesn't affect educational outcomes.
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Also, the student didn't avail herself of the grievance process
Illinois Mascot Case- University used Native American mascot and there were instances of
harassment at sporting events. Plaintiffs claimed hostile environment
Instances of which the University had notice were not proven to be sufficiently severe,
persistent or pervasive
Offensive =/= hostile environment
BERNARD DOES NOT AGREE WITH CASE
OCR will look for three elements:
1. Is there a hostile environment?
o Severe, pervasive activity denying them access to education
o The harasser does not need to be an agent or employee of the university
2. Is there notice?
3. Did the institution respond?
Reasonable person standard ("similarly situated" - e.g., reasonable woman of same age, etc.)
Question: What is reasonable in that setting?
Totality of the circumstances -- time, place, who is involved, power relationships, etc.

Speech Codes
o Have been judicially invalidated
o Can restrict conduct but cannot restrict speech
Tautology Aaron Loterstein
o R.A.V. v. City of St. Paul MN
Facts: Court invalidated a hate crime ordinance that prohibited expression that would
reasonably arouse anger, alarm, or resentment in others based on characteristics such as
race and gender
Court held that while you can ban content-based speech that has a secondary effect (arousing
anger), banning specific speech that discriminates against race, sex, etc was unconstitutional
because it prohibited otherwise permitted speech solely on the basis of the subjects the
speech addressed
o Legal Problems with Speech Codes (Doe v. Michigan- Psych student opposes speech code)
Emphasized balance between free speech and discrimination
Two problems with policy:
Vagueness
Breadth
Harassment does not = offending
o Ways to improve:
Tack anti-discrimination law
Useful to articulate non-enforceable vision statements
Be specific about employing content-neutral limitations on speech
Not about what someone is saying, more about how

Harassment v. Academic Freedom
o Cohen v. San Bernardino
Facts: Prof taught with adversarial method sexually explicit material covered in course.
Professor was sanctioned and filed suit claiming First Amendment academic freedom rights
were violated
Court held that the policy was too vague as applied to Cohen without notice that his teaching
style was outside of the bounds permitted by the university
Sexual Harassment
o Jane Gallop- Felt that sex is not harassment. Discrimination is harassment. Sex was a good form of
teaching. This is stupid.
Fails to take into account power discrepancies, objectivity, effect on other students
General Policy Considerations
o Discrimination/Harassment
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Want to promote educationally healthy environment
o Protection of academic freedom
University must have policy that attempts to balance academic freedom and
discrimination/harassment protection
o Freedom of speech
Protected/unprotected
Conduct versus speech
Content based speech
FIRE- Freedom of speech trumps anti-discrimination laws
OCR- Anti-discrimination policies should not be construed to limit protected speech

Sports

The Statute
o Title IX- "No person in the United States shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education program or activity
receiving Federal financial assistance..."
o Functionally prohibits gender discrimination at public institutions
Application of Title IX
o Applied most prominenetly to sports.
o Why not to everything (like chemistry)?
Already more of an open door in certain areas
Historical factors
o Federal funding- for the school or the athletics program?
Grove City College v. Bell- SC stuck to narrow interpretation of Title IX, not applying it where
federal funds were received for other parts of the institution
Civil Rights Restoration Act- Response to Grove City, broadly defined program or activity,
causing almost all colleges to be included
Historical Development
o Title IX passed in 1972. Not intitialy clear whether it applied to college athletics
o Congress decided it applied to athletics, and ordered Department of Health, Education and Welfare
(HEW) to publish regulations
Transformed anti-discrimination provision into one that mandated equal participation.
o In 1978, OCR published formal statement that the policy applied to any public or private institution,
person or other entity that operates an educational program or actvitiy which receives or benefits
from financial assistance authorized or extended under a law administered by the Department.
o Outlined three considerations in Titile IX
Participation
Financial Assistance
Other benefits and opportunities
Participation
o Three prong test:
(1) Substantial Proportionality. Asks whether opportunities are provided in numbers
substantially proportionate to their respective enrollments
Designed as a safe harbor
Usually difficult to comply with
(2) History and continuing practice of program expansion which is demonstrably responsive
to the developing interest and abilities of the underrepresented sex
(3) Full accommodation of interests and ability
Designed to allow schools to be in compliance if there is no interest
Not a popular standard anymore because people claim there might be untapped
interest
Will almost certainly lose if someone comes forward
o ONLY NEED TO MEET ONE PRONG
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Scholarships
o If an institution provides scholarships, it must provide them in equal proportions
Elimination of a Team
o Eliminating team of overrepresented sex
Might help in substantial proportionality, but if the net effect is simply to bring it closer to that
goal, it doesnt really help.
The cut team might then claim sex discrimination, and if the result was not
compliance with Title IX, the university will have a big problem.
o Eliminating team of underrepresented sex
Automatically makes it impossible to comply with 2
nd
and 3
rd
prongs of proportionality test
(no history of expansion, clearly not satisfying interests)
Key cases
o Cohen v. Brown University- Brown demoted womens volleyball and gymnastics teams to club status.
They sued for injunction. District court held violated Title IX because no substantial proportionality,
hadnt added a womens team in a long time, and the plaintiffs were expressing unsatisfied interests.
Court rejected the argument that the cuts were equal (they had also cut two mens teams) because men
were still more highly represented. Plaintiffs won on trial on the merits as well
o Kelley v. University of Illinois- University cut mens teams, partly for funding reasons and partly to
comply with Title IX. Court held there was no Title IX violation because mens participation was still
substantially proportionate. Court also rejected EPC claim (applying intermediate scrutiny) because in
complying with Title IX, the school was pursuing an important governmental objection. COA affirmed
COA addressed argument that Title IX created quota system by saying that the numerical goals
of proportionality test is not a requirement of Title IX, but simply creates presumption that the
school is in compliance.
NCAA
o Purposes- Protect student athletes from exploitation and abuse. Also about creating a level playing
field for athletes and colleges.
o Governance- NCAA is self-governing and a voluntary association.
This creates a sense that there might be inequality in enforcement, and no precedent.

Disabilities

The Law:
o Section 504 of the Rehabilitation Act of 1973
Like Title VI and Title IX, applies to colleges that receive federal financial assistance
Prohibits them from discriminating against otherwise qualified individuals with disabilities
o Americans with Disabilities Act (ADA)
Applies to three primary groups:
Employers
Government entities (i.e. state universities)
Private entities that serve the public
The statutes prohibit discrimination against individuals with current disabilities, individuals
believed to be (regarded as) disabled, and individuals with a record of a disability.
o Individuals with Disabilities Education Act (IDEA)
Applies to students in K-12
Requires public K-12 schools to provide free appropriate education in the least-restrictive
environment to all age-eligible students
Education is to be individualized to each student
Differs from 504 and ADA
Requires more than nondiscrimination and reasonable accommodation requires schools
to provide appropriate education
A lot more students with disabilities apply to
What is a disability?
o Basically: A physical or mental impairment that substantially limits a major life activity
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o (2008 Amendment to ADA and 504): A physical or mental impairment that substantially limits one or more
major life activities of such individual; a record of such an impairment; or being regarded as having such an
impairment . . . Major life activities include, but are not limited to, caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating and working.
o 11% of people in academy now have disabilities this number will only increase
o Students who engage in violent behavior because their disability that does not exonerate them
Standards that we apply to the community can be extended to persons with disabilities
o When someone meets the standards, institution must take reasonable steps to accommodate them
Dont require fundamental program accommodations
Cant be too excessive in price (but take this with a grain of salt)
Essential academic or technical standard?
o School can impose certain standards, so long as there is a good reason for doing it and were not singling
out a disability
o Issue of how much deference schools will get
o Process must be interactive and individualized
What is a reasonable accommodation?
o Not required to provide all reasonable accommodations, or the most reasonable accommodations just A
reasonable accommodation
o Universities must provide reasonable accommodations (academic adjustments and reasonable
modifications, auxiliary aids and services) to students with disabilities to allow them to participate fully
in educational programs and activities.
Academic adjustments: classroom and testing modifications (e.g., extra time on examinations;
moderately reduced course loads, limited leaves of absence, classroom modifications)
Auxiliary aids and services: practices that create access to information for persons with sensory
impairments (e.g., signers or readers)
o School does not need to provide personal services, but must allow students to use personal attendants
when needed
Types of accommodation:
o For students who have given notice and provided sufficient documentation, the following accommodations
are likely sustained:
Time and a half to double time on examinations
Moderately reduced course loads
Extra time to complete a degree program
Limited leaves of absence for medical treatment and recovery
Registration assistance
Assistance in applying for financial aid
Classroom modifications, such as preferential seating, taping and note-taking assistance
Priority in housing
Priority in parking
o Accommodation less likely to be sustained, but within the range of accommodations that may be required
in a particular set of circumstances:
More than double time on examinations
Long term leaves of absence
Course substitution or waiver
Reduced participation and attendance in the classroom
o Accommodations unlikely to be sustained:
Unlimited time for exams
Unlimited time for degree completion
Unlimited leaves of absence
Permission to entirely avoid attendance expectations
Reassignment to another teacher
Provisions of examinations or instructional services off campus except when generally provided to
students
Individualized instruction or tutoring except when commonly provided to students
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Restructuring the curriculum to address the students individual learning style
Access to information and communication
o Section 504 and the ADA require students with disabilities to have equal access to information and to the
avenues of communication including websites operated by colleges, other internet resources, distance
education programs, and more.
o When the educational institution involved is a government entity, the ADA requires that the students with
disabilities are to be provide communication as effective as that provided to nondisabled students.
Communication = transfer of information
Conditions under which communication is as effective as
1. Timeliness of delivery
2. Accuracy of translation
3. Provision in a manner and medium appropriate to the significance of the message and
the abilities of the individual with the disability
Accommodation Process
o Student must identify themselves as an individual with a disability and ask for assistance
o Initial burden on student to initiate the accommodation process
Should go through the disabled student services office or provider
Not unlawful for faculty members to informally accommodate students without involving a
disabled student services office, but not advised
o Student must provide documentation that he or she has a disability and needs an accommodation
Student must bear this cost
College may deny a students accommodation request for several reasons:
o 1. Can deny requests that represent a fundamental alteration in the nature of an academic program, such
as excusing a premed student from laboratory classes
o 2. A college may offer less costly but effective alternatives to the accommodations proposed by the student
o 3. An institution need not incur an undue economic or administrative burden in accommodating students
with disabilities
o 4. It need not bear the expense of personal services
Case Law and History:
o Southeastern Community College v. Davis
Supreme Court addressed denial of admission to nursing school of a deaf individual, Frances Davis
Court held that an otherwise qualified person is one who is able to meet all of a programs
requirements in spite of his handicap.
Court looked at both academic and technical standards, a category including all nonacademic
admissions criteria essential to participation
o Grove City College v. Bell
Court held that when an institution receives federal financial assistance, only the program
receiving the assistance is covered by the applicable discrimination statute
Congress responded to the decision in 1988 by enacting the Civil Rights Restoration Act this
ensured that when an institution received federal assistance, al of its operations were covered by
the relevant statute
o Issue of Paying for Accommodations and Auxiliaries
University of Texas v. Camenisch
SC ducked the issue of higher-education institutional responsibility under 504 for paying
accommodations and auxiliaries
Question still not answered today
United States v. Board of Trustees (11
th
Cir. Ct. decision that goes towards answering that question)
Held that universities may require students to first seek state vocational-rehabilitation
funding or other sources of funding to pay for services, but that when such services are
not available, the university must provide them, unless it can demonstrate that it is unduly
burdensome to so
o Wynne v. Tufts University Medical School
Medical student with dyslexia sought, as an accommodation, substitution of essay for multiple-
choice examinations
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College was required to demonstrate that:
The relevant officials of the institution considered alternative means [of examining the
student], their feasibility, cost and effect on the academic program and came to rationally
justifiable conclusion that available alternatives would result either in lowering academic
standards or requiring substantial program alteration.
In effect, the court concluded that colleges were entitled to deference in academic decisions, but
only after such deference was earned by engaging in an affirmative and thorough consideration
process
o Standardized Testing for Entrance Into Higher Education
Before the ADA, the standardized tests for admission into higher education programs were not
subject to any nondiscrimination mandates because the provider did not receive federal funding
Title III of the ADA applies to private testing programs, and, with its enactment, the providers of
these tests were required to provide reasonable accommodations to test-takers with disabilities
ADA also provided a basis for people challenging licensing tests
o Documentation Issues
Guckenberger v. Boston University
Held that requiring documentation to be created within the past 3 years imposed a
significant additional burden on students with disabilities
The court upheld a modified plan that allowed a student to procure a waiver of the testing
standard when a qualified certified the testing as unnecessary
Bartlett v. New York State Board of Law Examiners
Involved a claimant with a reading disability seeking accommodations on the bar exam
??? holding
o Sutton trilogy
o Toyota Motor Mfg. v. Williams
Court addressed what constitutes a major life activity
Major life activities are those that involve tasks central to the daily lives of most people
o Chevron U.S.A. v. Echazabal
Under 504 and ADA, to be an otherwise qualify Pied person with a disability, the individual must
not pose a direct threat
Court established that the standard for direct threat applies not only to threats of the health
and safety of others, but also to oneself
Feared outcomes of disability law = force colleges and universities to lower academic standards
o Counterargument = students with disabilities are required to meet the essential academic and technical
standards of the college or university, with or without reasonable accommodation
o Essential = ensures that colleges and universities never need to fundamentally alter their programs of
instruction to accommodate students with disabilities
Court must distinguish between what is essential and what is tangential

Grading

AAUP Policies on Grades:
o Three Main Components:
1. The faculty has the responsibility for the assignment of grades (part of their freedom in the
classroom from the 1940 Statement of Principles on Academic Freedom and Tenure)
2. Students should be free from prejudicial or capricious grading
3. No grade may be assigned or changed without faculty authorization
o Administrative officers should not substitute their judgment for that of the faculty
Court Approach
o Generally, great deference given to faculty:
Regents of the University of Michigan v. Ewing: Supreme Court decision which stated that,
When judges are asked to review the substance of a genuinely academic decision . . . they should
show great respect for the facultys professional judgment. Plainly, they may not override it unless
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it is such a substantial departure from accepted academic norms as to demonstrate that the person
or committee responsible did not actually exercise professional judgment.
University of Missouri v. Horowitz: Another Supreme Court decision in which the court
expressed its deference to a professors academic decisions
Relates to First Amendment Rights:
Parate v. Isibor: 6
th
Circuity Court, although ultimately ruling in favor of the university,
stated that [b]ecause the assignment of a letter grade is symbolic communication
intended to send a specific message to the student, the individual professors
communicative act is entitled to some measure of First Amendment protection.
o BUT, courts do sometimes say that the universitys interest in determining the grade trumps the
professors:
Parate v. Isibor: Parate, who taught engineering at Tennessee State University, sued the
administration when his contract to teach was not renewed because he refused to change a
students grade from a B to an A. Court ruled that while an individual professor may not be
compelled, by university officials, to change a grade that the professor previously assigned to a
student, university officials may alter the grade themselves. Court ruled that a professor has no
constitutional interest in the grades which his students ultimately receive.
Brown v. Armenti: A professor at California University of Pennsylvania sued the president of the
university claiming that the latter ordered him to change a graduate students grade from an F to
an incomplete, which Brown refused to do. The court stated that a public university professor
does not have a First Amendment right to expression via the schools grade assignment
procedures. It further stated that, [b]ecause grading is pedagogic, the assignment of the grade is
subsumed under the universitys freedom to determine how a course is to be taught.
Yohn v. University of Michigan (Pending before the 6
th
Circuit): Yohn, a professor of dentistry
suing the institution for changing the grades of make-up exams of two students from Fs to a C and
C+. District court ruled in favor of University on the First Amendment claim. Relied on Parate and
said that Yohn had failed to allege that he was forced to change the students grades.
o Due Process Courts will review procedures used by a college to determine whether a grade is fair
(meaning, not arbitrary, capricious or in bad faith)
Basics:
Arise out of 5
th
and 14
th
Amendments
Two types of due process claims:
o 1. Substantive were you were deprived of a life, liberty or property interest?
o 2. Procedural: Did you get notice and a fair process and appeal?
Regents of the University of Michigan v. Ewing: A medical student contended that he had been
arbitrarily and capriciously dropped from the Universitys medical program and asserted a
property interest in his continued enrollment. The Supreme Court granted certiorari for this case
and articulated a standard for determining arbitrary and capricious behavior. Specifically, it
stated that absent a showing of bad faith, a facultys professional judgment will not be overruled
unless it is such a substantial departure from accepted academic norms as to demonstrate that
the person or committee responsible did not actually exercise professional judgment.
Sylvester v. Texas Southern University: The only case in which the court stepped in and changed
a students grade. Sylvester received a D in her Wills and Trusts course which dropped her class
rank from first to third. She protested her grade orally and in writing several times and the school
never responded. Even after the court ordered proper review of her grade, the Academic
Standards Committee did not follow its usual procedure in evaluating her appeal. Court rules that,
[b]ecause in the exercise of state authority TSU has afforded a meaningful review to other
students who protested their grades, TSU must provide that benefit to Sylvester. While it is true
that the assignment of a test grade is a purely academic evaluation, Sylvester is entitled to due
process in that evaluation.
Academic v. Disciplinary Decision:
o Court gives much greater deference to academic, rather than disciplinary decisions:
o But what about those instances when it falls in the middle?
Matters of personal hygiene and interpersonal skills and attendance found to be appropriate
elements of an academic evaluation of a medical student (Horowitz)
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Repeated failure of a medical student to produce thesis data when requested was an academic
matter (Mauriello v. University of Medicine and Dentistry of NJ)
Professors letter to the file of a psychology graduate students file charging incompetent
performance because of absence from class and unethical conduct (missing client appointments)
was held to be academic (Harris v. Blake)
Failure of a nursing student to submit to a required physical exam report, inform the college of her
previous attendance at another school of nursing, and her irregular attendance were held to be
more disciplinary than academic (Brookins v. Bonnell)
When in doubt ere on the safe side. Institution should treat it as academic, rather than
disciplinary
o Board of Curators of the University of Missouri v. Horowitz: Involved dismissal of a student for clinical
incompetence in her final year. Court described the dichotomy between academic and disciplinary
actions. The determination of whether to dismiss a student for academic reasons requires an expert
evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking. Courts are much more adept at dealing with the adversarial nature of
disciplinary decisions.