Education 557

Legal Aspects of Higher Education

Winter, 2000

School of Education

University of Missouri-Kansas City

J. Douglas Toma

I.   Introduction and Overview

We will have two primary sets of objectives in the course.  The first is to develop your expertise as higher education administrators as consumers of legal services.  Our primary task this semester is to raise your familiarity with the legal issues that commonly arise within higher education so that you have the background necessary to ask thoughtful questions to counsel.  In other words, you should leave the course with the background necessary to recognize legal issues when they emerge on campus and engage in sophisticated discussions about them.

The other of our course goals is to cause you to consider how you might help to facilitate preventive law strategies.  We focus on the state of the law in several key areas, not merely as an intellectual exercise, but as it might shape particular decisions and policies on campus.  My premise in organizing the course is that the successful higher education is one who can develop approaches to managing an institution that take into account the rules and doctrine that courts and legislatures have defined.  He or she should endeavor to avoid litigation, but not be paralyzed by a fear of being called into court.

II.  General Information

A.   Date, Time, and Place

We will meet in room 336 School of Education.  The reference number for the course is 18125.  We will begin class promptly.  We will meet on the following days:

Thursday, January 13 @ 7:30 - 10 p.m.

Thursday, January 20 @ 7:30 - 10 p.m.

Friday, January 21 @ 4:30 - 7 p.m.

Saturday, January 22 @ 9 - 11:30 a.m.

Friday, February 18 @ 4:30 - 7 p.m.

Saturday, February 19 @ 9 - 11:30 a.m.

Thursday, March 16 @ 7:30 - 10 p.m.

Friday, March 17 @ 4:30 - 8:15 p.m.

Saturday, March 18 @ 9 - 12:45 p.m.

Friday, April 28 @ 4:30 - 7 p.m.

Saturday, April 29 @ 9 - 11:30 p.m.

Saturday, April 29 @ noon - 2:30 p.m.

B.   Addresses and Telephone Numbers

You may reach me outside of class by visiting my office, via telephone, or through electronic mail.  My preference is that you contact me by e-mail, whenever possible.  I check for both voice and e-mail messages at least daily.  My office is located on the third floor of the School of Education in Suite 328 (Urban Leadership and Policy Studies).  My address is:

School of Education

University of Missouri-Kansas City

5100 Rockhill Road

Kansas City, Missouri  64110

My telephone numbers in Kansas City are:

816-235-2451, office

816-235-5270, fax

My UMKC electronic mail address is:

     toma@umkc.edu

I also hold a courtesy research appointment at the University of Pennsylvania.  I check my UMKC e-mail daily.  I also check my voice mail frequently.  If it is necessary to contact me in Philadelphia, I may be reached at the Institute for Research on Higher Education at 215-898-4585 or at home at 215-875-3331.

C.   Office Hours

I will hold office hours by appointment.  Please contact me via electronic mail to schedule an appointment.

D.            Instructor

J. Douglas Toma is assistant professor of higher education, School of Education, University of Missouri-Kansas City and visiting fellow at the Institute for Research on Higher Education, University of Pennsylvania.  He holds a Ph.D. (1995) in higher education, M.A. (1993) in history, and J.D. (1989) from the University of Michigan.  Doug has been a UMKC faculty member since September, 1995.

III. Texts

We will use two texts in the course.  The text will be at the UMKC bookstore:

   Toma, J. D. and Palm, R. (December 1998).  The academic administrator and the law:  What every dean and department chair needs to know.   ASHE-ERIC Higher Education Reports, 26(5).  Washington, D.C.:  Association for the Study of Higher Education.

All other readings are available over the internet.  I will forward a URL address and password to you at our meeting on Thursday, January 20.  The first two cases, Coffee and Bob Jones, are attached at the end of this document. 

The same readings are available in edited form in:

Olivas, M. (1997).  The law and higher education:  Cases and materials on colleges in court.  Durham, N.C.:  Carolina Academic Press.

The Olivas casebook presents the legal decisions that you are assigned to read - and that are available as hotlinks on the website above - with all non-relevant material edited out.  The hotlinks include the decisions as presented by the court.  Thus, they include technical arguments that are beyond what you need to know for this course.  The book also includes several other cases, including cases on topics on which we will not touch or will only touch briefly.  The decision whether to purchase the casebook is yours.

IV.  Written Assignments and Other Expectations

A.   Final Paper

You will be responsible for producing a paper of 12-15 pages in length.  The paper will be a response to a hypothetical fact situation like the three hypothetical cases we will complete in class.  We will not have a "blue book" type final examination in the course.  The purpose of the paper is to have you consider the ideas that we discuss in class, as well as the assigned readings, in more detail and within the context of our primary course objectives.

Your hypothetical case, questions, and responses will be due to me - via e-mail - no later than Wednesday, May 10, 2000 @ 5 p.m. Central Time. 

Although I recognize that several of you are working full-time outside of the classroom and have several demands on your time, I will allow extensions only in the case of extreme hardship.

I have attached the assignment for the paper at the end of the class meetings and reading assignments section below.

B.            Discussion Questions

After each set of readings, you will be responsible for responding to a set of discussion questions.  The questions are included with each assignment in the class meetings and reading assignments section below.  These will be due on the Tuesday at 5 p.m. before each Thursday class meeting, via e-mail.  For the first set of class sessions on January 13 and 15, the questions will be due in class on Saturday.  Please pay careful attention to the date on which and time on which your responses are due.  You response to each question should be no shorter than 10 lines long.

C.            Hypothetical Cases and Class Discussion

At the conclusion of each of the three major units in the course, we will focus in class on questions related to a hypothetical case.  Come to class with answers to the questions prepared.

Your participation in class discussion will constitute 25 percent of your grade.

V.   Evaluation

I will use two primary criteria in determining your course grade.  The first is the quality of your contributions in class and your regular class attendance.  The second is the level of sophistication that you display in your written work.  Both are products of your attention to the assigned readings and your participation in class discussion.  I encourage you to read carefully and bring any questions that you might have to the attention of the class.  I define participation as engagement in the class discussion - you do not necessarily always have to talk in class but you need to be an active listener.

Furthermore, meeting deadlines is extremely important in the course.  I will not tolerate repeated missed deadlines -- and will take appropriate action if they occur. 

Finally, I expect your adherence to UM System and UMKC policies on plagiarism and student academic conduct.

VI.  Class Meetings and Reading Assignments

Please read the material listed under each topic for the class meeting indicated.

A.            Introduction

Thursday, January 13 @ 4:30 - 7:15 p.m.

Read:

1.            Toma and Palm, pp. 1 - 4

B.            The Law, Courts, and Counsel

Thursday, January 20 @ 7:30 - 10 p.m.

Friday, January 21 @ 4:30 - 7:15 p.m.

Read:

          1.   Toma and Palm:  pp. 5 - 26

2.   Cases (available in Appendix below or in Olivas):  Coffee v. Rice U. and Bob Jones U. v. U.S.

     Discussion Questions:

Your responses to these questions are due in class on Thursday, January 20.

1.   All legal disputes need to be grounded in some broad concept.  Discuss the differences between legal disputes based in contract, tort, statute, and the constitution?

Allow me to begin . . .  A contract between two sides assigns both of them responsibilities and provides both with rights if the other side does not perform.  Thus, once side may bring a legal action to enforce the terms of the contract against the other . . . [please continue . . .]

2.   What is precedent and how does it work in resolving legal cases?  How is it different than legal principles grounded in statute or the constitution?

3.   Discuss institutional rules and regulations and academic custom and usage.  What force and effect do both concepts have in resolving disputes?

4.   Today, do courts resolve academic matters and behavioral matters differently?  Why?

5.   How do courts resolve matters differently when they involve public institutions, private secular institutions, and religious institutions?

6.   What types of duties do attorneys have toward their clients within the attorney-client relationship?

7.   In the academic setting, why is the question "who is the client?" sometimes an issue?

8.   Discuss the concepts of authority and delegation.  What conditions are necessary to insulate a university administrator from being personally liable when something goes wrong under his or her watch?

9.   What are the relevant facts of the case and main issue being decided in Coffee v. Rice U.?

Here is my take on this answer . . .  The trust that established the university for the purpose of the tuition-free "instruction of the white inhabitants of the City of Houston."  The institution now wants to know whether it can go against the charter to admit African-American students and charge all students tuition.

10.  In Coffee, what did the court decide?  What philosophy did it use in interpreting the trust document? 

11.  What are the main reasons that the court gave for its decision in Coffee?

12.  What are the relevant facts of the case and main issue being decided in Bob Jones U. v. U.S.?

13.        What did the school argue in support of its policies, what did the government argue in opposition to them, and with which side did the court agree and what reasons did it find most persuasive?

* * *

         

Saturday, January 22 @ 9 - 11:30 a.m.

Read:

     1.   Hypothetical Case #1 (below)

Come to class prepared to discuss the case and questions below.  Write out answers to a few of the questions.  In doing so, focus upon how the relevant facts either support or do not support the application of the legal theories on which you base your arguments.  In other words, do not simply state a legal doctrine applies but suggest what facts might cause it to apply.  If there is a cause of action based upon Title IX, for example, simply asserting that the legal theory exists is not sufficient.  You must suggest how specific facts are evidence of gender discrimination as the statute defines it and whether these facts are sufficient to meet the standards of the statute.  Similarly, simply including facts in your arguments without relating them to a specific legal principal or standard is not an effective use of the limited space you have available.

Educational opportunities abound along Lake Shore Drive in Fort Dearborn.  Just north of downtown is the campus of Hartley University.  Hartley U. enrolls 15,000 students in bachelorate, masters, and doctoral programs in 100 fields of study.  Hartley U. was founded in 1878 with a gift from industrialist Robert Hartley.  Many people outside of the Fort Dearborn region know Hartley U. for its successful football team, the Bobcats.  The Bobcats play their home games at Peterson Stadium, which seats 50,000 people.  Tickets for home games are very difficult to obtain.  In fact, due to the recent success of the football team, Hartley U. now draws most of its students from outside of Fort Dearborn and tuition charges at Hartley have become among the highest in the nation, exceeding $20,000 per year.  The football success has also attracted the attention of the city of Fort Dearborn, who has passed a 5% tax on all tickets sold for "intercollegiate football games played within the city limits."  The university has challenged the tax, citing a state law forbidding the taxation of the activities of either private or public postsecondary institutions that are related to "any educational objective."

Harley U. remains a private institution, although it receives substantial federal and state support through student loan programs and research grants and contracts.  Several years ago, the institution entered into a contract with the state to offer a program in art history.  The state felt that it was very important that the residents of Fort Dearborn be exposed to the fine arts and decided to fund the entire cost the program.  The university has control over the program -- who is hired to teach, what is taught, what tuition is charged -- and the annual state appropriation is used to cover any shortfall in revenues.  Recently, several untenured arts program faculty were dismissed without any notice or hearing by a new program director.  They have sued the director and the university under the Fourteenth Amendment.  The institution has responded that as a private institution they are not subject to the terms of the U.S. Constitution and the court should grant its motion of  summary judgment.

Adjacant to the Hartley University campus is what the state hopes will become Borden State University.  Borden was founded at the turn of the century as Borden Academy, a two-year private college offering degrees in the new field of aviation.  Over the years, the college grew, changed its name to Borden College, and began to offer bachelorate degrees in several fields.  From its founding, the Borden family remained in control of the institution.  In the early 1990s, the need for a comprehensive public institution -- one that would offer professional degrees at tuition priced to more affordable than at Hartley -- became apparent to many in Fort Dearborn.  In response, the state legislature approached Borden College, which was struggling financially at the time and risked bankruptcy, and suggested that the college merge into the existing state system of higher education, becoming Borden State University.  Several members of the Borden College board objected to the merger.  They claimed that the merger violated the terms of the trust executed by Howard Borden, Sr., the founder of the Academy.  The trust stated the Academy should always remain privately held -- Borden, Sr. had a lifelong hatred for the government and was what we would term today a Libertarian -- and that control of the board of trustees should always remain with the Borden family.  Interestingly, the Borden family had never maintained a majority on the board since the founding of the college.  The board voted 13-5 to join the state system and become Borden State College.  What swayed the board was the strong evidence that Borden College could no longer remain viable as a private institution.  The five dissenting board members have brought an action against the board and state to prevent the merger. 

    

The state has also come to appreciate the need for public two year education in the Fort Dearborn area.  The region was one of the only ones in the nation without a public community college.  Kessler Junior College had been operating for several years as a private two-year institution.  Recognizing the immediate need for establishing a public community college in Fort Dearborn, the state entered into an agreement with Kessler JC, which like Borden College had struggled during a general economic downturn Fort Dearborn.  The state agreed to fund Kessler JC -- which would remain a private institution -- through local taxes.  In exchange, the state would have authority over on what programs Kessler spent the money.  The state would also obtain the right to set tuition rates, audit various accounts, and select a one-third of the Kessler JC governing board.  Kessler J.C. was founded by an order of Catholic nuns, who would retain a voting majority on the governing board of the college.  A group calling itself "Citizens for the Separation of Church and State" have challenged the proposed arrangement in state court.

Just beyond the Kessler JC campus, at the corner of Lake Shore and Tupperman Blvd. is Robinson Church.  Pastor Jerry Robinson has built Robinson Church into an institution of great reach and influence in Fort Dearborn.  The church attracts over 10,000 people to services each Sunday and services are televised across the nation on cable television.  Affiliated with the church are successful elementary and secondary schools.  Last year, Robinson announced plans to begin what he called the Robinson Institute to train "those called to spread the word of the Lord."  The Institute would not be a traditional postsecondary institution.  It would offer certificates, bachelorate degrees, and doctorates via air time purchased on the television stations that carried the Sunday services.  In order to receive their degrees, the bachelorate students would be required to sign affidavits attesting to the fact that they watched each of the 30 hour-long sessions, paid careful attention, and were "profoundly moved by the experience."  Several hundred prospective students sent a $500 deposit to the Institute to secure their place in the first enrolling class.

Upon hearing of Robinson's plans, the state board of higher education -- the body charged with licensing postsecondary education institutions in the state -- brought an action in state court to enjoin Robinson Institute from offering bachelorate and doctoral degrees.  In response, Robinson applied for a license and was denied after a short hearing.  The state did not include consideration of the religious affiliation in its decision.  The court accepted the argument by the state that Robinson was offering degrees without meeting the conditions of the state higher education act.  The act required that institutions offering bachelorate degrees require "an amount of coursework, whether taken in residence or through other means, normally required by postsecondary institutions in the state generally."  The "normally required" language in the statute has never been interpreted by a court in the state, though one court in the jurisdiction suggested that residential programs were more likely to meet the definition of "coursework."  Robinson then proposed adding a residential component to the distance program.  He began to raise money from the members of his church to build a dormitory to house the distance education program students during the one week each year that they would be required to be "on campus" in Fort Dearborn.  Meanwhile, Robinson brought an action against the state board for violating the free exercise clause of the First Amendment and the due process provision of the 14th Amendment of the U.S. Constitution when it denied the license. 

To add a further complication, when it became clear to the residents of the Tupperman neighborhood that Robinson was ready to build the dormitory, the city of Fort Dearborn secured an injunction to prevent any construction.  The building would violate the Fort Dearborn zoning rules written in the 1960s intended to prevent "large groups of unrelated adults from taking residence within the city."  The intention behind the ordinance was to prevent "hippies" or "cults" from moving into large houses in the Lake Shore district.  The ordinance has been upheld when applied to a religious cult similar to the Heaven's Gate group, but has not been held to apply to fraternity houses, group homes, or bed and breakfasts.  Robinson challenged the city's ordinance under the same First and Fourteenth Amendment grounds.  Finally, not trusting that Robinson would adhere to the injunction, the Tupperman Neighborhood Association began to hold sit-ins at the construction site, preventing the construction workers for doing any work on the site.  Robinson sued the Neighborhood Association under the First and Fourteenth Amendments and for tortuous interference with business.

All of the attention that Robinson Institute has received has brought to public attention the rule at the church against non-U.S. citizens being members of the church.  By extension, non citizens would be expressly prohibited from attending Robinson Institute, which includes church membership within its admission criteria.  The Internal Revenue Service is considering rejecting the application Robinson Institute recently submitted for Section 501(c)(3) status.

Finally, word of a secret agreement among all of the institutions in Fort Dearborn to limit the number of programs that they offer -- and therefore increase student demand and the tuition that they can charge -- has come to public attention.  The Justice Department is considering taking action under the antitrust laws.

1.   Explore the chances of the dissenting Borden board members of preventing the merger between Borden College and the state system. 

2.   Would the situation be any different if the trustees had based their decision on the fact that they were late for dinner and wanted the meeting where the decision was made to end quickly?

3.   Why was the state board justified in denying Robinson Institute a license to operate as a higher education institution?  Is there case law that might support his position?

4.   Would the Robinson case have been any different if it was a private accreditation agency denying accreditation, instead of a state agency denying a license?

5.   Might Robinson be more successful against the city ordinance?

6.   Will the suit by Robinson against the Neighborhood Association survive a motion for summary a motion for summary judgment?

7.   How would you advise the IRS to decide on the Robinson 501(c)(3) application?

8.   Should the court grant the motion for summary judgment by Harley U. in response to the action by the dismissed faculty members?

9.   Discuss the merits of the challenge by "Citizens for the Separation of Church and State" against the Kessler J.C. plan.

10.  Support Hartley's contention against the city of Fort Dearborn in the football game taxation issue.

11.  Outline the case the Justice Department might make against the plan by the Fort Dearborn colleges and universities to limit programs in order to raise tuition.

C.   The Employment Relationship with Faculty and Staff

Friday, February 18  @ 4:30 - 7 p.m.

Saturday, February 19 @ 9 - 11:30 a.m.

Read:

          1.   Toma and Palm:  pp. 27 - 59

2.            Cases:  Sweeney v. Keene State U. and Parate v. Isibor

Discussion Questions:

Your responses to these questions are due via e-mail on Thursday, February 17 @ 5 p.m.

1.   Discuss the concept of incorporating other documents into a contract. 

2.            Describe what the anti-discrimination statutes are intended to do.

3.            What advantages do the anti-discrimination statutes offer over using the U.S. Constitution in a discrimination-based lawsuit? 

4.            What must institutions do to comply with the American with Disabilities Act? 

5.            Describe two situations where an institution would be in compliance with the ADA, but would not make an accommodation to someone with a disability?

6.            What are the justifications for affirmative action programs?  Discuss the "compelling interest" and "narrowly tailored" standards, particularly what types of programs are Constitutionally permissible at what types of institutions. 

7.            What are some reasons why institutions grant tenure to faculty? 

8.            Discuss the facts, issues presented, decision, and bases for the decision in Parate in terms of the academic freedom that both individual faculty and institutions have. 

9.            Do you agree with the decision of the court in Parate?  Why? 

10.        Discuss the facts, issues presented, decision, and bases for the decision in Sweeney?

11.        How does Sweeney conform with or differ from the typical processes and standards for granting tenure and how institutions usually apply them?

12.        How is an institution likely to get into trouble in making a tenure decision, either denying tenure or granting tenure?

13.        In general, how are personnel issues different at religious institutions than at public or private secular institutions?

14.        Discuss the ways in which discrimination can enter into employment interviews and what institutions can do to ensure that it does not?

15.        Describe the basic principles underlying the U.S. immigration laws and how these laws do and should shape policy and practice in higher education?

* * *

Thursday, March 16 @ 7:30 - 10 p.m.

Friday, March 17 @ 4:30 - 8:15 p.m.

Read:

          1.   Toma and Palm:  pp. 60 - 84

2.            Cases:  Sweezy v. New Hampshire and McConnell v. Howard U.

Discussion Questions:

Your responses to these questions are due via e-mail on Tuesday, March 14 @ 5 p.m..

1.            Discuss how academic freedom applies to both institutions and individual faculty?

2.            Why do both institutions and individual faculty need academic freedom protection, and from whom do they need protection?

3.            Discuss the facts, issues involved, decision of the court, and reasons for the decision in Sweezy.

4.            Looking at the Frankfurter concurring opinion in Sweezy, what is he arguing and what are the strengths and weaknesses of his approach given what you know about contemporary higher education?

5.            What are some basis principles of good employment evaluation?  How might these apply in the case of a tenured faculty member whose performance is thought to be substandard?

6.            In general, what constitutes sexual harassment?  What types of situations involving sexual harassment are likely to occur in the higher education setting?

7.            What are five things that every higher education administrator needs to know about sexual harassment?

8.            What types of things do you think institutions should do to respond to complaints about sexual harassment?  How would you balance the rights of the accused with the interests of the accuser?

9.            Suggest two examples of what it might take to dismiss a tenured faculty member "for cause."

10.        Discuss the McConnell case.  What happened, what did the court decide, and why did it decide what it did?

11.        Do you agree with the result in McConnell in light of what you know about "for cause" dismissals?  Why or why not?

12.        Suggest an example of when dismissal of a tenured faculty for "financial exigency" is permissible, and what an institution would have to do to protect the interests of the dismissed faculty member.

* * *

Saturday, March 18 @ 9 - 12:45 p.m.

Read:

     1.   Hypothetical Case #2 (below)

Come to class prepared to discuss the case and questions below.  Write out answers to a few of the questions.

Since 1993, Sally Rogers had served as assistant professor of communications in a tenure-track position at State University of New York at New Rochelle (SUNY-NR).  SUNY-NR has adopted the 1940 AAUP Statement of Principles on Academic Freedom, so Sally has held probationary status during the term of her employment.  Sally has applied for tenure in accordance with applicable SUNY-NR procedures, submitting a portfolio illustrating her research productivity and the quality of her teaching to the SUNY-NR School of Arts and Sciences (CoA&S) Promotion and Tenure Committee (P&T).  The committee is charged with reviewing her application for tenure and soliciting external reviews of her scholarly work.  The external reviews remain confidential under SUNY-NR rules.  The P&T committee voted 5-3 to reject Sally's application, with the majority citing the generally lukewarm external endorsement of Sally's scholarship by the external reviewers.  Upon being informed of the decision, Sally exhausted the available internal appeals -- which included reviews by the CoA&S dean and university's provost -- but to no avail.

Sally figured getting tenure at SUNY-NR would be a "slam dunk," and cannot believe her application was rejected.  She strongly suspects that the quantity and quality of her work -- the standards that university rules clearly state should be the only basis for a tenure decision -- were not the basis on the decision.  Sally believes that she was rejected on the basis of the substance of her work and on the basis of her personal life.  Sally is the only member of the SUNY-NR communications faculty to publish in the prestigious Review of Communications (she has published two articles there and a third has been accepted).  In addition, she has three times the number of citations in peer review journals as had the five faculty members tenured in her department over the past ten years.  Sally's scholarly work, which focuses on representations of women in children's television programming, is quite controversial.  She is also a devout Scientologist and has applied the teachings of the religion in her scholarly work.  Sally has brought an action in federal district court against SUNY-NR for breach of contract, failure to provide due process, gender discrimination, religious discrimination, and violation of her first amendment rights in the area of academic freedom.

Sally's colleague and close friend, Buddy Sorel, has been a lecturer in the communications department for the past three years, holding a one-year contract during each year.  Each Fall, Buddy teaches a undergraduate level course titled "Critical Approaches to Studying Communications."  In the course, Buddy regularly screens films and videos.  Students are required to attend all screenings.  In Fall, 1997, Buddy screened the film "Naked in New Rochelle" as part of the course.  The film -- which includes some limited frontal nudity -- is considered a classic in the genre, having won the New York Film Critics award for Best Picture in 1971.  The film was recently restored and re-released and received an "R" rating from the Motion Picture Association of America (those under age 17 must be accompanied by a parent to see the film).  A version of the film with 2 minutes edited out of it was recently shown on network television.

Jerry Helper, a state representative from New Rochelle, learned of the screening and called a press conference to demand the SUNY-NR immediately fire Buddy for "corrupting the morals of our youth."  Helper is chair of the appropriations committee of the state assembly, the body that determines the annual state appropriation received by SUNY-NR.  Upon hearing about the demand by Representative Helper, Alan Brady, SUNY-NR's president, ordered Mel Cooley, chair of the communications department, to "do something about Sorel -- and quickly -- or you will be looking for other employment."  Mel interpreted the remark to mean that he should not renew Buddy's current one-year contract, which expired at the end of the academic year.  Mel has just informed Buddy that his services will not be needed at SUNY-NR during the next academic year.  Mel did not give a reason for the decision, but Buddy strongly suspects that it has its basis in the controversy over showing the film.  Buddy is contemplating a lawsuit.

Rob Petrie is a tenured faculty member in the communications department.  Rob is well-known to students as an "easy 'A.'"  Over the past ten years, Rob has given 95% of his students grades of "A" or "A-" and only three students out of 1,500 over that period have received a grade lower than B.  Accordingly, his classes are consistently oversubscribed.  Rob regularly misses several class sessions each semester, generally instructing his teaching assistants to ask the class if "everything is going okay" and then dismiss the group.  In fact, Mel has evidence that students enrolled in the Fall, 1997, semester course on "Theories of Communications" received only seven hours of instruction in 40 hours of scheduled class time.  Only a few students have complained the university about Rob's teaching over the years.  Rob is a prolific researcher and his scholarly work is quite well-regarded in the discipline.

After several years of listening to other faculty in the communications department complain about what they see as Rob's lax teaching, Mel has decided to act.  Because Rob has tenure, Mel knows that he needs to prove "adequate cause" before he can dismiss Rob.  Mel believes that he has adequate cause.  Mel has informed Rob that his contract will be terminated at the end of the academic year.  Mel secured the approval of the provost, Millie Helper (yes, the wife of Jerry), before taking the action.  Millie is interested in reducing the size of the communications department.  Under SUNY-NR policy statement 75-3(c)(5), Rob has the right to a full hearing before the SUNY-NR Academic Practices Committee (APC).  Rob may have counsel present at the hearing, but the lawyer cannot examine witnesses or address the panel.  As expected, Rob brought his case before the APC.  The APC rejected his challenge.  Rob has now brought a lawsuit in federal district court seeking to permanently enjoin the impending dismissal.

1.   Given the case law that we have covered, how would you assess the prospects for a successful challenge by Sally on each of the five theories?  Make sure to discuss the property and liberty interests involved here.  Be brief.

2.   If the university files a motion in limine (a motion to exclude certain evidence) to exclude the confidential external reviews from evidence in Sally's case, is it likely to be successful?

3.   How would the case be different if SUNY-NR was a private, religious college and the basis of the tenure decision was "personal conduct inconsistent with the teachings of the church and principles of the institution?"

4.   How might Buddy challenge the non-renewal of his contract?  Address both any property and liberty interests involved, as well as any academic freedom issues.  Given the case law that we have covered, how would you assess his prospects for a successful challenge?

5.   How would your analysis be different if a meaningful stigma would attach to Buddy due to the dismissal, causing serious damage to his reputation and making it difficult for him to obtain another position?

6.   If Alan had decided tell Jerry to "keep his nose out of university business," on what broad principle would he rely?

7.   On what legal basis or bases can Rob bring his case against SUNY-NR?  Is there an academic freedom issue here?  Given the case law that we have covered, how would you assess his prospects for a successful challenge?

8.            If the reason underlying the dismissal was that Rob had been convicted for embezzling several thousand dollars from a research grant administered through the university, would you anticipate a different result?

* * *

D.   Students in Academic and Social Settings

Friday, April 28 @ 4:30 - 7:15 p.m.

Read:

          1.   Toma and Palm:  pp. 85 - 110

2.            Cases:  McDonald v. Hogness, Southeastern C.C. v. Davis, Bradshaw v. Rawlings, Ross v. Creighton U., U. Missouri v. Horowitz, Piccozi v. Sandalow, Gay Student Services v. Texas A&M U., Widmar v. Vincent

3.   Piccozi article (Yale Law Journal) (distributed in class)

Discussion Questions:

Your responses to these questions are due via e-mail on Tuesday, April 11 @ 5 p.m..

1.            Explain the concepts of "in loco parentis" and "educational consumerism." Have we evolved from the former to the latter in American higher education?

2.            Discuss the differences in how courts are likely to address cases dealing with academic matters and behavior matters involving students? 

3.            Is there really a clear line between academic and behavioral matters?  Use Horowitz and Picozzi as illustrations.  Is either case purely academic or behavioral?

4.            Discuss the standard to determine discrimination in student admissions.  What do administrators need to keep in mind if they are going to avoid discrimination in this context? 

5.            Discuss the facts of the case, issue involved, resolution, and reasons for the resolution in McDonald?  Do you agree with the decision of the court?  Why or why not?

6.            In what types of situations are administrators likely to be held by a court to have discriminated in admitting students?

7.            Discuss the facts and holding in Southeastern C.C.  In your view, did the court make the right decision?  What fact or facts, if different, might have swung the court the other way in making its decision?

8.            What is the idea behind the Family Education Rights and Privacy Act?  Give examples of one situation where you, as an administrator, would release a record, and one example of a situation where you would not.  (Remember to make these "close call" situations.)

9.            Under what types of circumstances can a public institution restrict someone from speaking on campus, as with a protest rally?

10.        Discuss the decision in Gay Students.  What did the institution argue and why did the court reject their argument?  Do you agree with the decision?

11.        How is the decision in Widmar different than that in Gay Students?  What did the court actually decide in Widmar?

12.        What is important to remember in assessing whether an institution is liable for an injury to a student?

13.        Discuss the Bradshaw case.  In your view, should the college have been held liable?  What fact or facts, if different, might have swung the court the other way in making its decision?

14.        Should the institution have been held liable for "educational malpractice" in Ross?  Consider the concept of educational consumerism.  Why or why not?

* * *

Saturday, April 29 @ 9 - 11:30 a.m.

Read:

     1.   Hypothetical Case #3 (below)

Come to class prepared to discuss the case and questions below.  Write out answers to a few of the questions.

Faber State University is a public institution located within a state higher education system that the U.S. Supreme Court recently held retained vestiges of its prior de jure segregation.  On the FSU campus, there is strong empirical evidence of the present effects of past discrimination.  As required by law, FSU implemented an affirmative action program, that included admissions, intended to overcome the effects of its past discrimination.  The FSU Graduate School of Social Work divided applicants for admission into two groups, evaluating minority candidates apart from all other applicants.  It reserved 15 percent of the seats in its entering class for these minority applicants.  The School of Social Work based its admissions decisions upon three criteria:  (1) undergraduate grade point average; (2) Graduate Record Examination scores; and (3) "demonstrated commitment to enabling and empowering . . . ."  The admissions committee developed a formula to quantify "demonstrated commitment."  In its admissions materials, Faber State stated two justifications for its policy:  (1) building a "diverse student body;" and (2) the "alleviation of past discrimination."

Doug Neidermeyer, who is white, applied for admission to the FSU School of Social Work.  The School of Social Work rejected his application, even though he had a higher GPA and GRE score than every minority candidate admitted and had a higher "enabling and empowering" score than all but two of the 20 minority candidates admitted.  Greg Marmalard, who is also white, was admitted to the School of Social Work, but was denied a Pepperidge/Jansen scholarship, which would have paid his full education-related expenses while enrolled and provided him with a $20,000 travel stipend during that time.  The University established the Pepperidge/Jansen scholarship in response to a recent U.S. Court of Appeals holding that at a another university in the state system there was "overwhelming evidence of the present effects or past discrimination."  On the strength of several recent research reports about discrimination at FSU, administrators strongly suspected the same situation existed at their University.  The School of Social Work based its scholarship decision process on the Harvard-style system favored by Justice Powell in Baake v. Regents, an admissions case.  The scholarship committee evaluated all applicants for the scholarship program together and considered minority "race or ethnic background to be a plus but only one element -- to be weighed fairly against other elements -- in the selection process."  Both Doug and Greg brought actions in U.S. District Court challenging the respective FSU programs.  The Court decided to hear the cases together.

When it appeared that the University was about to settle the pending actions against it out-of-court by changing its admissions and scholarship policies, several students joined together to organize a group in support of the FSU programs, calling it Diversity Through Exposure (DTX).  The University officially recognized the group on the condition that it be subject to University rules for all student groups (anti-hazing, financial accounting, etc.).  DTX immediately planned a protest rally on the steps of the administration building, a "public forum" where such rallies commonly took place.  The group applied for use of the area in front of the building on a given date at a given time, as required by the FSU Time, Place, and Manner policy.  The group, headed by two FSU undergraduates, Larry Kroger and Kent Dorfman, secured Senator John Blutarsky, a noted activist, to speak at the rally.  John had recently spoken at neighboring Emily Dickinson College and incited students during a rally in support of animal rights to burn down a biology research laboratory.  As part of the Faber State rally, students would carry large candles.

Vice President for Student Affairs, Vernon Wormer, reacted by withdrawing recognition for the group, citing that it "interfered with the opportunity of other students to gain obtain an education."  Vernon did not elaborate and his stated reason puzzled Larry and Kent, who in a letter to the editor published in the Daily Faberian, the campus newspaper, explained that they could not understand how their "peaceful activist group could be portrayed in such a way."  Vernon also informed DTX that he would not approve their application for a permit to hold the protest because "the likely content of the speeches, particularly that of Senator Blutarsky, would likely incite violence" and that the time and place of the speech was "incompatible with normal activities."  The students again could not understand Vernon's rationales, as they reported in their letter to the editor.  They purposely scheduled the rally for 8 p.m., when no classes or other activity regularly took place within the area of the administration building.  Prior to the scheduled rally, Larry and Kent gained the support of the ACLU and brought a successful action in federal court enjoining the University from preventing the rally.

During the rally, Donald Schoenstein and Eric Stratton, two FSU seniors who had been drinking heavily, decided to make a what they called a "statement about affirmative action at FSU" by going off-campus and stealing a car from DePasto Buick and driving it into the duck pond at the center of campus.  In the back seat, the two found blue blazers with a patch on the pocket reading "FSU Ambassadors."  The FSU Ambassadors are a group of students who serve as hosts at University functions.  On the way to the duck pond, Donald and Eric picked up alumnus Fred Dorfman (yes, brother of Kent) who was on campus for a School of Engineering Alumni Board of Visitors function.  When Fred asked Donald and Eric if they were there to pick him up to take him to the university-scheduled alumni dinner, the two answered affirmatively.  The car was being prepared for delivery to FSU and had a "FSU -- Knowledge is Good" decal on both front doors, so it was reasonable for Fred to think that FSU had sent the car for him.  Fred suffered serious injuries when the town rescue squad attempted to remove him from the damaged vehicle using a defective "jaws of life" device.  Carmine DePasto, the owner of the dealership and mayor of the town of Faber, was eager to press charges against Donald and Eric and the local prosecuting attorney indicted them on several felony counts.  He also made visited Vernon and made it clear that he would not tolerate such activity by Faber students in "his" town.

Vernon responded by sending a registered letter to both students notifying them to appear before the University Disciplinary Council, a group consisting primarily of senior faculty and administrators, at a given time two weeks for a hearing to determine whether they should be "suspended or expelled from FSU or otherwise disciplined."  Vernon informed each student that he "would be given the opportunity to explain his conduct" and could have counsel present but could not call or confront witnesses.  (Donald's girlfriend, Katy, was willing to testify that she saw him passed-out under a tree before going to DePasto Buick and she believed him to be asleep in the back seat of the stolen car during the entire "joy ride" part of the incident.)  He suggested to the students that they "review the policies, protections, and procedures outlined in the FSU Code of Student Conduct and be prepared to make their case."  Two days before the hearing, Vernon had his secretary call Eric to inform him that his academic performance was below the minimum required to continue at Faber and the Council would also address at the hearing whether he should be dismissed from school for bad grades. 

The day Donald and Eric received their letters, Eric discovered that the room he shared with Daniel Day, another student, had been searched by the resident director of their hall, Chip Diller, who acted upon Vernon's instruction.  The housing contract between the University and its students stipulated that "staff could search student rooms when they reasonably suspected activity contrary to the efficient functioning of the University . . . ."  Diller found a small vile of cocaine on Daniel's desk.  Daniel was dismissed from FSU after a full hearing and has challenged the dismissal in federal court.   

At the hearing, neither Donald nor Eric would answer questions posed by the Council about the stolen car incident on the advise of their respective counsel.  Eric did address his poor academic record in some detail when asked about it.  After deliberation, the Council decided to expel Eric for his poor grades, pursuant to the written Faber State policy on academic performance.  The Council did not reach the question of whether Eric should also be expelled for stealing the car in its letter notifying him of its decision.  The Council decided to suspend Donald pending the outcome of his criminal trial.  It stated that without testimony from him about the incident, it could only conclude that the police report accurately portrayed the event.  Both Eric and Donald brought actions in federal court challenging their punishments.

Finally, another student, Robert Hoover, was escorted from the rally by University Police after shouting "Wormer is a facist . . . affirmative action is right and he knows it."  The police released him to return to his on-campus residence hall.  Robert learned that he was to be brought before the Faber State Student Judicial Board for possible disciplinary action when the Chair of the Board called him the night before the scheduled hearing.  The student board was limited in its authority to sanction students to requiring 100 or fewer hours of community service; it could not suspend or expel students.  The Board gave Robert ample opportunity to explain his side of the story, but he was not allowed council, witnesses, etc.  The Board decided that "disciplinary action was in order" because his speech violated the "hate speech" clause in the Faber Expression Policy and assigned Robert to do five hours of community service.  Robert brought an action in state court challenging the community service.

Given these hypothetical facts, please answer each of these questions in order:

1.   Under what constitutional provision might Doug most persuasively challenge the affirmative action program and Greg challenge the scholarship program?  What will Doug have to demonstrate to win?  (In other words, what types of things invalidate a policy such as FSU's?)  What will Greg have to show?  Assume that FSU is not in Texas and Hopwood is not controlling precedent.

2.   Under what two constitutional provisions might Larry and Kent most persuasively have challenged Dean Wormer's decision to withdraw recognition of their group and deny them permission to hold the rally?  What do Kent and Larry have to demonstrate to win the injunction?

3.   What might be the best argument Eric and Donald would have if the University Disciplinary Council attempted to somehow pressure them to testify?  What procedural devise would they use with the court to get the result they wanted?

4.   If Eric decides to challenge his expulsion under the Due Process Clause of the 14th Amendment, what would he have to demonstrate to win?

5.   If Donald attempted the same challenge to his suspension, would the Court be more or less likely to decide in his favor?  Why?

6.   If Fred brings a lawsuit against the University for his injuries, as opposed to an action against Donald and Eric or the town of Faber, what might he argue to justify recovering against FSU?  Remember our discussion of authority, but also remember the notion of proximate cause and not to forget your common sense.

7.   Under what constitutional provision might Daniel most persuasively challenge his dismissal?  What will he have to demonstrate to win?

8.   Under what constitutional provision might Robert most persuasively challenge the community service imposed upon him by the Student Judicial Board?  What will he have to demonstrate to win?

9.   Assume for Question 8 only that Faber State is a private, non-religious college.  Could any of the plaintiffs bring an action under the constitution?  What about various federal statutes?  Are common law theories, particularly contract, available to them?  What would they have to demonstrate to win under these theories?

* * *

E.   Regulation and Oversight in the School and the Department

Saturday, April 29 @ noon - 2:30 p.m.

Read:

          1.   Toma and Palm:  pp. 111 - 124

          2.   Case:  City of Morgantown v. West Virginia Board of Regents

Discussion Questions:

Your responses to these questions are due via e-mail on Tuesday, May 2 @ 5 p.m..

1.            Discuss the "fair use" doctrine in copyright law.  How might this apply on various settings on campus?

2.            Why do you suppose higher education institutions are tax exempt?  What types of activities are likely to place this tax exemption at risk?  Use City of Morgantown as an illustration.

3.            What is accreditation?  Discuss the different types of accreditation.

* * *

F.            Final Paper

due Wednesday, May 10 @ 5 p.m.

Your assignment is to write a hypothetical case, several questions related to it, and responses to those questions.  The case, questions, and responses should resemble the three hypothetical cases that we have discussed in class.  In crafting your paper, please include something relating to each of the following concepts:

1.            the traditional deference by courts to academic decision making

2.            distinctions between public and private institutions

3.            distinctions between secular and religious institutions (particularly in the context of the establishment clause and the free exercise clause)

4.            equal protection and the anti-discrimination laws

5.            property and liberty interests leading to due process in the context of faculty or other employees

6.            property and liberty interests leading to due process in the context of faculty

7.            promotion and tenure of faculty

8.            for-cause dismissal of a tenured faculty member or other employee

9.            contract-based claims by students

10.        affirmative action in student admissions

11.        free expression and/or free assembly under the First Amendment

12.        negligence and liability

The twelve concepts above clearly overlap with each other.  You may combine these concepts in whatever ways you choose in writing your case and questions.   For example, you may explore equal protection in the context of promotion and tenure of faculty as well as through affirmative action in admissions.

Your fact situation must be at least two single-spaced pages long.  You must ask at least ten questions.  You must respond to each question with at least one single-spaced paragraph and no more than three single-spaced paragraphs.  You total response must not exceed ten single-spaced pages. 

Your hypothetical case, questions, and responses will be due to me - via e-mail - no later than WEDNESDAY, MAY 10, 2000 @ 5 p.m. Central Time.

You do not need to include a bibliography with your papers, but you must cite your case or other material on which you relied.  Cite both cases and other materials in text, including page number for direct quotes.  For cases, use the name of the plaintiff or appellant in the citation (the first one listed in the full citation), underlined.  Here are some illustrations:

. . . this illustrates material drawn from a case (Hopwood, 1996).

 ". . . this is a direct quote from the Hopwood case" (Hopwood, 1996, p. 732).

. . . this is material drawn from Toma and Palm's monograph (Toma and Palm, 1999)

 ". . . this is a direct quote from Olivas' monograph (Olivas, 1997, pp. 330-31).


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