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159 Cards in this Set

  • Front
  • Back
1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people to peaceably assemble and to petition the government for the redress of grievances.
not protected speech
1. Obscenity (defined by local custom and tradition)
2. Can’t encourage violent overthrow of the government
3. Can’t encourage violent behavior
4. Defamatory
5. Interfering with peace of mind/tangible loss
6. Acts causing immediate fear for personal safety
Establishment Clause
Government may not establish, promote, or advance religion. First amendment Must allow for free exercise of religion.
Pickering 5 Prong Test
1. The distance between the speaker and those being spoken about is important (more distance is better)
2. Subject matter being spoken about must be of a public concern
3. Should identify self as public citizen and not as employee
4. Speech should not create workplace disruption
5. Speech shouldn’t render you ineffective in your job (i.e. no one will work with you as result of your speech)
Chaplinsky v New Hampshire
Man called police officer a facist.
• Court ruled these were “fighting words” meant to incite the person- NOT protected
Gitlow v New York
Gitlow wrote a leftist article against america.
• Supreme court found that he was guilty of the crime
• Supreme court found that New York was not allowed to deny their residents the civil and human rights expressed within the Constitution
Virginia v Black
Person burned cross on private land (farm). Neighboring black family witnessed this
• Court ruled you can’t determine all cross burning as illegal
• Must prove it was done with intent/purpose to intimidate (then it isn’t protected speech)
Lemon v Kurtzman
Secondary education case where state monies were paying for books, salaries, instructional materials in church related education.
• Court ruled this was unconstitutional because it was not clear where the money was being spent.
• This established the three prong Lemon Test
• Example: Federal Stimulus money couldn’t be used to advance religion
Lemon Test
1. Program must have secular focus
2. Program must not have effect of advancing religion
3. Program must not cause excessive entanglement between government and church/religion
Tilton v Richardson
• Court ruled state could give money to private religious institutions for facilities as long as the facilities were never used for theology or religion (advancing religion). (State former rule was couldn’t be used for this for 20 years then afterward it was ok so this part was overturned)
Davey v Locke
Student was eligible for public scholarship and wanted to use this in seminary.
• Court ruled while he was eligible for the funds he was not able to use them for seminary and this was not discriminatory (Lemon!)
• Found there is some "play in the joints" between what is constitutionally required and what is constitutionally forbidden
Colorado Christian University v Weaver
Colorado was giving state funds to help students at private religious institutions and state said students at CCU were not eligible
• Court ruled Colorado couldn’t pick and choose which religious institutions it would give monies to.
• Finding for CCU because the state was creating a test between what was okay and what was "pervasive" religiosity
• Different from Locke because his desire was religious (was in seminary).
Widmar v. Vincent
• Can’t deny student groups access to facilities because of the content of their group- policies must be content neutral in regards to religion
• If you recognize one group it is difficult to not recognize another.
• Policy went further than the first amendment required
Gay Rights Coalition v Georgetown University
• Private institution can determine which groups it chooses to recognize but it can’t deny access to facilities.
• Facility access as content neutral applies to both public and private
Keegan v University of Delaware
UD banned religious practices in common areas under establishment clause because it felt it promoted religion.
• Court ruled establishment clause did not pertain because space was not specifically identified for religious purposes.
• Found UD restricted free exercise of religion
• Content Neutral!
Rosenberger v UVA
Christian student organization applied for funds for publication (as other organizations received) and was denied because their paper was Christian and evangelical slant
• Court ruled UVA infringed on 1st amendment rights. Providing funding doesn’t violate establishment clause. If you do for one group you need to do for all
• Content Neutral!
Tinker v DeMoines
K12 expressive speech case: Students were wearing black armbands and told they must remove these
• Courts said you don’t leave your constitutional rights at the school house door
Papish v Board of Curators of the University of Missouri
Political cartoon in newspaper (statue of liberty and police officer)
• Court ruled the cartoon couldn’t be described as obscene
• The institution is public and therefore the constitution applies
Healy v James
Students for Democratic Society (SDS) petitioned for recognition and were denied by president from fear of them being violent and disruptive
• Court ruled you cannot have prior restraint (restrict based on what you think may happen)
• You can prohibit IF the assembly is a clear and present danger (but not because you think it might before it even happens)
Doe v Michigan
A series of racial incidents occurred on campus and student groups demanded action. Language that “victimized or stigmatized" was prohibited by UM
• Court ruled the rule was vague and broad and no reasonable individual could anticipate in advance what speech was prohibited
• Litmus test- REASONABLE person should be able to anticipate in advance what speech is prohibited
Sigma Chi v George Mason University
Fraternity had “ugly woman contest" and they were disciplined for this
• Court ruled contest was constitutionally protected. Short of obscenity, live entertainment is protected by 1st amendment. *This was expression and therefore protected.
Gay Lib v University of Missouri
Organization was seeking university recognition
• Court ruled you can’t deny recognition based on content
• 14th Amendment (equal protection)
Mazart v State
Freedom of press case. A letter to editor (printed) was derogatory toward “gay students” The names on the letter were not the actual author. Sued for defamation
• Courts ruled Institution is not liable because it had a clearly articulated relationship where it was not liable for content.
• When the newspaper is independent the institutions may not censor or control the content.
First Amendment doesn’t covey (won’t protect faculty) with
Excessive profanity
Berating students
Hostile learning environment
Forcing their beliefs
Urofsky v. Gilmore
State rule was no pornography could be on state computer. Faculty conducting research must have prior approval from dean.
• Courts said state had right to restrict this
• Public employment is privilege not a right
• Academic freedom related to pedagogy and course content goes to institution
• 1st amendment, faculty.
• Establish reasonable employment rules.
Pickering v. Board of Education
School teacher fired for negative remarks about board and superintendent of schools.
• Created 5 point test regarding protected speech: 1) relationship must be distant, 2) must be a matter of public concern, 3) must be commenting as a citizen, 4) speech must not disrupt workforce, and 5) must not render you incapable of doing job.
• Teacher could not be disciplined based on this test. While your speech may be protected, may still have employment consequence.
• 1st amendment.
Martin v. Parrish
Instructor fired for using profanity in class. Sued for first amendment infringement, academic freedom, equal protection, and due process.
• Court ruled profanity was not a matter of public concern and reduced his effectiveness as a teacher.
• Speech not protected because was an attack with no academic purpose. He was not treated differently than other similarly situated persons.
Sweezy v. New Hampshire
Faculty member was fired because refused to testify about group membership and other members.
• Supreme Court affirmed his right to free association and right from undue governmental influence.
• 5th amendment
2nd amendment
right to bear arms, restricted by criminal charges and age limits
4th amendment
search and seizure - The right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probably cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
To conduct search police must:
1. Have probable cause
2. Have evidence that creates suspicion
3. Have a search warrant (warrant is limited in scope and specific)
Administrative searches w/o search warrants are legal when done
1. to maintain order
2. maintenance
3. health/safety
Can only use in administrative procedures. Individuals can waive 4th amendment rights.
University officials can enter rooms for following purposes
1. room inspection/maintenance
2. health and safety concerns
3. reasonable assumption of policy violation
*Outcome of search generally remains with institution
Probable Cause
Legal standard used by magistrates to obtain warrants. Reliable informant provides information. Warrants are very specific, constrained by what is reasonable
Reasonable Cause
Based on professional judgment of administrators to enter a room. Not a high standard (doesn’t require much evidence).
Plain View Doctrine
What is in plain view does not need to be searched for. Thus, no warrant is required.
Pizzola v. Watkins (1971)
Police asked university official to enter a room w/o a warrant because of investigating marijuana. To enter, must have reasonable cause based on professional judgment. Can’t enter to assist in criminal process without a warrant.
• Courts ruled search was unconstitutional. Students have reasonable expectation of privacy. Search was done for criminal purposes not for educational purposes.
• 4th amendment, students
State of New York v. Marshall (2004)
Student gave permission for police to come into his room and he was in possession of drugs.
• 4th amendment case.
• Courts ruled the university was operating under reasonable suspicion.
5th amendment
self incrimination
Does not come up often. UMD code allows negative inferences from no answer.
This is because hearing is educational process and nothing said will be used in court case.

Faculty cannot evoke the 5th to respond to job related questions
United Public Works v. Mitchell
• Prohibits federal employees from participating in certain types of political campaigns because of conflict of interest, Reduces pressure or retaliation for not supporting a certain campaign.
James v. Board of Control
• Similar case to UPW v. Mitchell for state employees.
Both cases defined what is appropriate behavior of state and federal employees related to elections. Defines conflict of interest.
14th Amendment
Due Process Rights and Equal Protection under the Law
14th amendment – due process & equal protection
Must apply rules equally. Two types of due process:
1. substantive – reasonableness of rule itself
2. procedural – opportunity to respond, notice, decision made on facts presented, and written notice of outcome.
Board of Trustees v. Waugh
• Court ruled students do not have a “right” to be there it is a privilege. If it is a privilege there is not standing to sue.
George Washington University v. District of Columbia
Case about approving university campus plan. Zoning board imposed proposition 9 capping which limited the number of undergraduates until 70% were housed on campus.
• University argued that proposition 9 violated due process and they could not comply. Court ruled that position 9 violated substantive due process and that the position was arbitrary and unreasonable.
Villyard v. Regents of the University System of Georgia (1948)
Dry cleaning business sought to stop university from opening dry cleaning business with reduced student rates.
• Court ruled that university had right to establish business that concerned students b/c it was reasonable related to health and welfare of students.
• Contract case
Churchill v. Board of Trustees (1948)
University selling hearing aids to students. Dealer argued that university sale was unfair competition.
• Court ruled that the university had a right, authority, and duty to provide educational opportunity of students and could sell hearing aids.
• University argued (successfully) giving student opportunities to sell hearing aids, service and fit individuals was part of their educational opportunity. They couldn’t sell totally for profit.
Jansen v. Atiyeh
• College hosted a festival and opened dorms for rent to groups with educational objectives. Hotels and businesses sued. Allowing those with educational objectives was legal. Board has the right to determine what higher education means.
• More educational the activity, the better.
Iowa State University of Science and Technology v. US (1974)
University sought to regain taxes paid for university owned TV station.
• Court ruled that taxes were properly paid because income gained from TV station was separate and apart from educational mission. Income was generated from individuals not associated with an educational program.
• Universities running commercial businesses are not tax exempt.
Furlong v. Alpha Chi Omega
Plaintiff agreed to sell sweaters to AX with specific design. Third party was to apply the design. AX paid down payment. Furlong decided to change design in 5 ways w/o permission When AX received sweaters, refused to pay.
• Court held that there was a contract that included an express warranty of the design.
• Seller breached contract and buyer was entitled to cancel and recover down payment.
Moose Lodge v. Irvis (1972)
• State Action case – Irvis argued state action because of the lodge’s liquor license- said Lodge discriminated and denied service to AA guest
• Private club liquor license was insufficient to demonstrate state action
• Private organizations can establish own rules as long as not excessively entangled with state and not illegal
• 14th amendment – equal protection. Engaged in state action but the court disagreed.
Powe v. Miles (1972)
• Example case of public/private dichotomy
• Alford University (1968) private school with ceramics school (state school) acting as a state agent. Disciplinary action.
• Example of state action – or acting on behalf of the state (ceramic college v. other Alfred students)
• 14th amendment & due process did apply to some students because of state action (contract theory and delegation theory of state action)
• 3 theories of how private can be public: 1) state action, 2) public function (never upheld), and 3) contract
Key Points – students and the 14th amendment
• Are protected by 14th amendment
• Contracts with student and institutions can be created expressly in written or oral form or created from the implied conduct of parties
• Steinberg v Chicago – admissions, university must follow its policies
• As stakes rise, due process should as well
• Courts respect university decisions unless abuse of authority.
• Should follow stated procedures.
• In suspension cases, should have notice of hearing and opportunity to present their side (Dixon)
Steinberg v. Chicago Medical School (1977)
• Regulations were not applied equally, that is required by the law. Application fee creates contract between student and school based upon the stated criteria.
• 14th amendment, students.
Mississippi University for Women v. Hogan (1982)
State institution that enrolled only men at night.
• Constitutional theory applied to higher education. Was in violation of the 14th amendment and Title IX did not trump the 14th amendment.
• Courts rule MUW as state institution couldn’t discriminate based on men. (Regardless of pedagogical reason)
Booker v Grand Rapid Medical College
Student paid fees, attended classes, followed policies and institution didn’t want to award degree
• Court ruled when parties have an agreement and one party meets the terms the other is obligated to meet its terms.
• Contract theory.
Dixon v Alabama
• Landmark due process case
• Established minimum standards for due process: Notice of the hearing, Opportunity to respond, Outcome in writing, Final decision made on evidence
Esteban v. Central Missouri State College (1969)
• Very prescriptive due process case, may not be good law today.
• Must provide 10 day written notice, see evidence in advance, list of witnesses, right to be represented by legal counsel, right to cross examine. Transcribe the hearing.
• This applied all legal proceedings to a judicial hearing standards
Soglin v. Kauffman (1969)
• Court said college had policy which was unconstitutionally vague. (It was a policy that gave permission to the university to dismiss students for "misconduct")
• Policies must be: specific enough for reasonable person to determine in advance what is expected and cannot be arbitrary or unduly vague
• 14th amendment, due process.
Connelly v. University of Vermont (1965)
Student said faculty was acting in bad faith
• Courts ruled faculty member was biased and therefore the student’s success was impossible
• 14th amendment, due process.
Waliga v. Board of Trustees of Kent State University (1986)
Point of Law: Colleges have right to revoke degrees
• Protecting the academic integrity of the institution. Must do in a timely manner and in good faith.
• 14th amendment, due process
Krasnow V. Virginia Polytechnic Institute (1977)
Student was convicted of drug possession and argued VT couldn’t hold him responsible for of campus behavior
• Court ruled it isn’t double jeopardy. It is double jurisdiction (and permissible)
• The college may insert itself with student misconduct off campus.
• 14th amendment, due process
Gorman v. University of Rhode Island (1988)
• Gorman had requested criminal due process.
• Due process case that affirmed Dixon. Due process required by law for disciplinary sanctions.
• Don’t need different due process for different cases.
Gomes v. University of Maine
• Court said school provided sufficient due process.
• Cross examination is not guaranteed as part of process, particularly in an educational system. If you say you will allow something, you must allow it.
• Due process case.
Schmidt v. Regents of the Univ. of Michigan
Students want to claim equal protection under 14th amendment and say that should not pay more tuition than in state students.
• Courts ruled this was not a federal issue, is a state issue. Out of state students are not similarly situated b/c don’t pay state taxes.
• Institution has the right to set tuition
• 14th amendment, equal protection
Prostrollo v. University of South Dakota
Student sued over rule to live on campus.
• Lower court said rule was unconstitutional
• Rule if require living on campus only to meet debt service, could be unconstitutional. However, in this case, court held that there was educational value to the rule.
• 14th amendment, equal protection
Derdeyn v. University of Colorado
Drug testing at a school
• Court ruled that university drug testing was unconstitutional despite the waiver b/c waiver was obtained under duress.
• Failed to argue that were trying to address a drug culture within a team or to protect institutional reputation.
• Now, NCAA has reasonable rules and regulations to protect athletes.
What is the relationship between the 14th amendment and tenure?
Once you establish a property right for employment you have a duty to provide due process. Due process required by law is: 1) timely notice, 2) opportunity to respond, 3) written notice of the outcome of the meeting.
What are the three I’s for termination of employment? (and the fourth reason)
I - incompetence
I - insubordination
I - immorality
Or… other good reasons
Key Points – faculty and the 14th amendment
• Institution must follow procedure. Privates govern by good faith, publics by constitutional standards.
• Tenured faculty get due process in termination hearing b/c tenure is a property right.
Subryan v. Regents of the Univ. of Colorado
Faculty member was terminated after receiving notice of one-year contract. Terminated due to financial crisis at institution. Sued for breech of contract.
• Court said that institutional policies take precedent over employment contracts and can be considered statutory in nature. They superseded the financial crisis which determined the one year contract. (faculty contracts were normally for 3 years.) Can’t change contract mid-stream.
Kunda v. Muhlenberg College (1980)
Instructor denied tenure because she did not have a terminal degree even though male counterparts didn’t
• Sued because of sexual discrimination under Title VII. Said not informed of need for terminal degree.
• Court granted tenure because university had ample opportunity to inform of the needed degree and the committee felt she was deserving of tenure and it was only denied because of the needed degree.
• Male counterparts without terminal degree had been granted tenure.
• College has to follow its own rules
Lovelace v. Southern Massachusetts University
Employment Case
• When employed for a finite period of time, there is no property right to employment thus no due process is required.
Perry v. Sindermann
• Non-tenured employee terminated. While there was no policy regarding tenure, was a practice of awarding contracts routinely – de facto tenure system.
• Expectation of employment, creates a property right, thus have a right to due process.
In loco parentis
in place of parents – historic relationship. Act in place of parents for making decisions about the health and welfare of students. Cases: Gott v Berea, Anthony v Syracuse. Time of total deference to institutions by courts.
Privilege
assumption that attendance is a privilege. HE is not compulsory. Puts institutions in dominant position. Can invite or “un-invite” Cases: Board of Trustees v Waugh. HE is evolving into more of a right b/c fed and state gov’t is saying more about benefit of HE.
Contract
goods and services are exchanged. Assumes institution will provide services in exchange for fee. As long as both parties agree to contract and deliver their end, things are good. Contracts assume parties are equal but are not in this case, institution is dominant. Cases: Booker v. Grand Rapids Medical College.
Trust
banking/finance theory. Student is beneficiary of trust, executor is responsible for making decisions that benefit trustee. Acknowledges power difference. Requires that operate in good faith. Problem – executor of trust can not sever the relationship.
Fiduciary
finance/legal theory. Acknowledges unequal nature of relationship. Subordinate party expresses confidence in the ability of the superior to make decisions on the other’s behalf.
Constitutional
most often used at publics. Students are citizens and have rights regardless of age. Cases: Tinker v DeMoines.
In Constio Cum Parentibus
acting in concert with parent. Three way relationship (student, parent, institution). This is reflected in FERPA carveout.
Citizen Authority
Similar to fiduciary. Citizen=student. Authority= Institution. Both citizen and authority have responsibility to each other.
Bystander Era
No special relationship, no special duty. Students are adult, we cannot expect college administrators to protect adults from themselves. Shows the very quick departure from in loco parentis. A time when courts expected to see a rise in campus crime.
Cases: Bradshaw, Baldwin, Beach
• Students not under scrutiny of university. Not insurers of dangerous behavior
• Administrators given a pass during this time
Duty Era
college administrators must exercise reasonable care in some circumstances. Special relationship is incident and fact specific. If can foresee danger, special relationship. Must protect from dangerous/criminal activity, reasonable care on field trips.
Cases: Furek, Mullins, Nero, Peterson
• Attendance alone does not create special relationship. Some special relationships:
o Landlord/tenent – owe by definition a certain level of care
o Invitee – invited on to property, owe a reasonable level of safety
o Employer/employee
o Custodian – incarcerated persons, caring for children & elderly
Facilitator Era
a model of an environment of shared values, risk and responsibility. Share legal and university affairs vision. Parents are partners as well.
Tort
civil wrong where there is a remedy that will make the victim whole again.
Criminal Proceeding
protects society and punishes the wrong doer
Civil Proceeding
attempts to make the injured person whole again through monetary damages
Grounds for Action in Torts
1. intentional interference (See below- assault, battery, interference peace of mind, false imprisonment)
2. strict liability – Hold defendant responsible even if it is no fault of them (Hamburger v Cornell)
3. negligence – conduct that falls below an acceptable standard of care and results in injury. Reasonable person standard, default to the defendant. (Tarasoff, Bradshaw)
4. Defamation - communication that diminishes the reputation of another person and intends to injure the reputation. Two Types of Defamation are libel (written) & slander (spoken). In order to show defamation: statement must be false, maker must know it to be false. The statement must bring hatred, disgrace, ridicule or contempt and damages must result. Damages must be real & tangible Examples: loss of employment, reputation, promotion
Intentional Interference
1. assault – the fear for immediate personal safety
2. battery – physical contact with another person that results in injury
3. interference of peace of mind – affliction of mental/emotional distress. Can’t perform normal functions.
4. false imprisonment – confinement against one’s will.
strict liability
Hold defendant responsible even if it is no fault (Hanburger v Cornell)
negligence
conduct that falls below an acceptable standard of care and results in injury. Reasonable person standard, default to the defendant. (Tarasoff, Bradshaw)
Defamation
communication that diminishes the reputation of another person and intends to injure the reputation. Two Types of Defamation are libel (written) & slander (spoken). In order to show defamation: statement must be false, maker must know it to be false. The statement must bring hatred, disgrace, ridicule or contempt and damages must result. Damages must be real & tangible Examples: loss of employment, reputation, promotion
To prove Negligence
1. Duty – owe the person something. Determined by the relationship, produces an expectation of care
2. Breach of duty – Failure to meet established standards
3. Proximate Cause – injury must be caused by the defendant. Must be a direct causal link
4. Demonstrate injury or loss.
Legal Defenses to Tort
1. Contributory Negligence – if injured party contributed to their injury, cannot recover loss
2. Comparative Negligence – compare the role of plaintiff and defendant and proportionate allocation
3. Assumption of Risk – waiver, ask to sign and take responsibility for reasonable risk
4. Immunity – state and federal organizations, children, elderly and charitable orgs have immunity from tort litigation (however lawsuit against VT could change this)
What are the two defenses to defamation?
1. Truth – generally – as long as what said was true and said for a good reason
2. Privilege – Authority to share certain information with others. Absolute: judge, Dr. Conditional privilege –conveying information to protect others..
Four Strategies for Reducing Liability
1. Cancel the activity
2. Transfer the risk to someone else
3. Manage the risk associated with the activity
4. Insure against the risk
Five ways to Avoid Liability
1. Act in the scope of your authority
2. Act in good faith
3. Follow directions consistently and carefully even if you disagree
4. Report and record quickly
5. Do not make assumptions
Morris v. Nowotny (1959)
Morris was dismissed from college and then imprisoned for trespassing. Sued for false imprisionment
• Administrators acting in scope of their job descriptions and acting without malice cannot be held liable for discretionary decisions.
• Know your scope of authority.
• Tort – negligence and duty
Tarasoff v. Regents of Univ. of California (1976)
Therapist was aware client threatened to harm former girlfriend but didn’t warn due to confidentiality. She was killed.
• Court said that in a therapeutic relationship if you believe there is harm to self or others, have a duty to warn. Failure to warn is not protected by governmental immunity. There is no duty to confine an individual.
• Tort – negligence
Bradshaw v. Rawlings (1979)
School function, adviser signed check for beer. Students injured by a drunk driver who drank at event.
• May not be good law today. Good example of Bystander University.
• No advisor was present at the event (key point). College not liable because no special relationship that imposed a duty. Beer distributor and municipality were liable.
• Change from in loco parentis
• Tort – negligence
Polgar v. Syracuse University (1998)
Slip and fall case.
• Must make reasonable attempt to maintain safe premises. Liable because failed to exercise due care.
• Tort - negligence
Beach v. University of Utah (1986)
Student got drunk on field trip and was injured.
• Court found no special relationship with student so there was no duty.
• Alcohol policies do not create a custodial relationship or additional duty b/c abiding by state/federal law
• Bystander University case example; may be decided differently today.
• Tort - negligence
Peterson v. San Francisco Community College
• Court said college had no duty to provide police protection but does have a duty to warn because of previous events. Additionally they were aware of conditions (shrubs, low lighting)
• Duty created by foreseeable danger.
• Tort – negligence
Furek v. University of Delaware (1991)
Student injured in fraternity hazing. Fraternity, national organization and university all sued for breach of duty to care.
• Court of appeals found university liable because of hazing policies – university was concerned about hazing and wanted it to cease; and this fraternity was known to engage in similar behavior in the past and this created a duty.
• University had put self in a place to respond and prevent hazing and failed to do so.
• Shift from bystander era to duty era.
Hamburger v. Cornell
Chemistry lab explosion. All equipment functioning properly, all students trained, lab was supervised. Student injured.
• Ruled that university was not at fault but due to university ability to pay, would have to pay.
• Illustration of Strict Liability
Gott v. Berea College (1913)
Gott opened a restaurant that was listed on Berea’s forbidden list
• Typical in loco parentis case – total deference to institution
Anthony v. Syracuse (1928)
Student dismissed because not a typical Syracuse girl – had visited restaurant that served alcohol
• In loco parentis case – brought shame to the institution
Williams v. Junior College District (1995)
High school student slipped in a garage. Contract case.
• Once a student is admitted, pays fees, they are owed a standard of care.
Baldwin v. Zoradi (1981)
Student was injured in a auto-wreck from students drinking in the residence halls
• Bystander case, no duty to protect. When rules mirror state law there is no special relationship created. When you create policies over state law, create a special relationship with higher duty of care.
• Case dismissed because of lack of connection between non-enforcement of alcohol policies and injury.
• Was a special relationship but not enough to establish negligence.
• Key issue was intervening event – the speeding contest caused the injury.
Nero v. Kansas State University
Student from other institution attending summer school at KSAU was raped by fellow student whose case was yet to be decided by university.
• KSU had landlord/tenant relationship and they owed a duty of care to the building residents. Nero, not a KSU student could not protect self from unknown harm.
• University did not do enough b/c they knew and did nothing. How do you want to be sued?
• Tort – negligence and forseeabilty.
Prime v. Beta Gamma (1975)
Prime was pledge with Beta Gamma and encouraged to drink
• Duty era case.
• No one sued owed the student a duty – off campus fraternity house.
• Courts: You are an adult with freedom of choice and you are responsible for yourself
Miller v. State (1984)
Woman was raped twice, claimed university knew violence was happening on campus.
• Court said University should have locked external doors and was negligent. Had liability as landlord for reasonable safe environment for students.
• Tort – negligence and foreseeabilty
Mullins v. Pine Manor College (1983)
Intruder in residence halls (doors/locks in poor condition). Institution was aware of vagrants near campus. Campus security was required to make rounds and didn’t. Fence was in disrepair.
• Court decided Mullins was owed a duty b/c of foreseeability and widespread impression of campus safety. Promised a standard of care and did not deliver, staff also failed to do job.
• End of legal insularity of higher education. College owed the student a legal duty to reasonable care.
• Duty era case
Chontos v. Rhea (1998)
Professor had forcibly fondled student in private conference. Had reputation for similar things before.
Sued university under title IX for sex discrimination and deliberate indifference on behalf of the university. Absent a discrimination policy, student had to prove that a university official had knowledge of the harassment, the authority to act on the complaint with corrective action and failed to act.
• Employers have a duty to act. Institution was fully aware of the problem and failed to act
• Sexual harassment case.
Two Ways to Discriminate legally:
1. hire the best person as long as they have defined qualifications
2. BFOQ – bona fide occupational qualification, can discriminate against those who don’t have it. Ex. Language, gender*, PHD, are very few BFOQs in higher education.
Two Ways to Show Discrimination under Title VII
1. Disparate treatment – must show you are a member of a protected class and were discriminated against b/c of protected class status. Have to show that didn’t get job/weren’t promoted. Low par of responsibility first on plaintiff. Then burden is on the employer – doesn’t have to show discrimination did not occur, only have to give plausible reason for decision. Most common in hiring, firing, and promotion cases.
2. Adverse impact – not common in higher education. Show that ostensibly neutral hiring or work practice discriminates systematically on protected class. Must demonstrate protected class status and show how practice discriminated by workforce analysis or workflow analysis.
Workflow analysis
look inside your university to see if practice discriminates. Difficult to prove.
Sexual Harassment
unwelcome sexual advances, request for sexual favors, and physical/verbal conduct of a sexual nature. Behavior must be connected with a term or condition of employment or have purpose/effect of unreasonably impeding job performance. Can’t create an environment that is negatively charged in a sexual way where can’t perform job. Two types:1. Quid pro quo – something for something. Only have to do once.
2. Hostile workplace – creating climate where can’t perform job – unreasonable interference. Develop over time, multiple events, causes debilitation or interference with peace of mind.
Valentine v. Smith
• Affirmative Action case.
• Plan to remedy previous racial discrimination is not unconstitutional. As long as can show that in past willfully and purposefully discriminated over time.
• AA plan without quota is constitutional.
Palmer v. District Board of Trustees
Palmer was employed temporarily. School advertised and he applied but wasn’t hired. He believed he was more qualified and sued based on age discrimination.
• Age discrimination case.
• Court ruled he could not demonstrate discrimination and he couldn’t have expected employment beyond contract.
California v. Bakke (1978)
Bakke applied and was rejected twice. Minority students with less qualifications had been offered admission. Bakke argued reverse discrimination
• Reverse discrimination case.
• Any time admission criteria is not consistent, institution is on thin ice
Podberesky v. Kirwan (1994)
Scholarship program for AA students. University argued that scholarship was used to recruit underrepresented populations.
• Actually used to recruit affluent AA students from out of state. Court ruled scholarship was not being used to rectify past wrongs in the state and was unconstitutional.
US v. Fordice
Concerns over dismantling segregated duel system of HE. Several parts of Mississippi HE needed changing, duplicated programs, different admission standards, admission classifications.
• Court rules that the use of race neutral policies by itself does not make up for historic discrimination.
• Supreme court conduced that diversity was an appropriate public policy goal. Not only calls for content neutral policies but recruitment of underrepresented groups.
Hopewood v. Texas (1996)
White students sued under equal protection clause for admission policies that favored traditionally underrepresented groups at UT.
• Circuit court ruled that law school could not use race as a factor in admission. Circuit court contradicted supreme court decision.
• First successful legal challenge to racial preferences in student admissions since Bakke.
Grutter v. Bollinger et al. (2003)
Undergraduate diversity policy. Points automatically given to minorities.
• Because policy was a quota system and not narrowly tailored enough to achieve the educational benefits of a diverse student body, was unconstitutional.
• Violated 14th amendment to equal protection.
• “Too much affirmative action”
St. Mary's Honor Center v. Hicks
• Demonstrates where burden goes to prove discrimination
• Plaintiff has to show he/she is member of protected class
• Defendant offer plausible reason why it made decision it did
• Burden falls back to plaintiff to prove discrimination
Timeline of Desegregation in Higher Education
1850 Roberts v City of Boston court ruled that segregating schools by race was ok
1866 Civil Rights Act civil war, ruled all people equal, vetoed by A Jackson
1896 Plessy v Ferguson separate but equal schools are ok, emphasis separate
1927 Gong Um v Rice separate but equal schools ok, to ensure tranquility
1938 Gaines v Canada started to chip away at separate but equal, (can’t send out of state)
1950 Sweatt v Painter more chipping away if qualified can’t be rejected solely on race
1952 Brown v BOE 1 court struck down separate but equal doctrine
1955 Brown v BOE 2 added with “all deliberate speed” to integration
1964 Civil Rights Act reaffirms 1866 act, all people are equal
1966 US v Jefferson County desegregation applies to higher education
1973 Adams v Richardson dual system of HE in south – plan to remove all vestiges
1978 CA v Bakke when admission criteria are inconsistent, institution on thin ice
1991 Podberesky v Kirwan scholarship not used for intended purpose is unconstitutional
1992 US v Fordice diversity was appropriate public policy concern, recruit
1996 Hoppwood v Texas ruled law school could not use race in admission
1998 Swann v Charlotte busing an appropriate remedy for the problem of racial imbalance
among schools
2003 Grutter v Bollinger all factors of diversity considered so is constitutional
2003 Gratz v Bollinger violated equal protection b/c quota, not narrowly tailored
“Too much Affirmative Action”
Davis v Bakke
Podbersky v Kirwan
Grantz v Bollinger
Marder v. Board of Regents
Marder sued over release of records regarding sexual harassment case. (violation of privacy)
Tried to enjoin the university from releasing.
• Court ruled ok since state law in Wisconsin says employee records aren’t confidential
• Sunshine law – citizens entitled to complete information regarding the affairs of their government. Ex. Open meetings and open records.
Gonzaga University v. Doe
Gonzaga shared information that was considered part of a student’s record. Student sued under violation of FERPA
• On appeal, institution won suit. There is no private right of action to sue under FERPA.
Norwood v. Slammons (1991)
Freedom of Information Act case.
• Norwood brought issue under FERPA. Norwood was a 3rd party with no standing to sue b/c not her disciplinary record.
• No jurisdiction to sue.
• Court said “You’ve sued in the wrong court”
American Medical College v. Mikaelian
Individual took test 8 times, opened facility and copyrighted answers to teach others.
• The use of verbatim copyrighted test answers is not protected.
• Fair use doctrine does not cover test questions.
Lieber v. Southern Illinois University
Off campus housing complex wanted directory information from Housing. Wanted name of all on campus students. Because SIU felt he wouldn’t use information appropriately didn’t share even though they readily had a roster.
• SUI could not refrain from releasing directory information to a third party, regardless of the intention of the individual to use the information for commercial gain. Directory information was not an unwarranted intrusion of personal privacy, particularly since the University printed a directory with the same information.
• It was the custom and tradition to release names.
Caledonian-Record Publishing Co., Inc. V. Vermont State Colleges
A paper requested security logs, disciplinary records and hearing information.
• Institutions released the security logs but only the final results of certain disciplinary hearings (under Clery).
• Court ruled only Clery records were required to be released.
Freedom of Information Act (Sunshine Laws)
Requires state employees make work transparent
• Ten days to respond to initial request . Fines begin on Day 11.
• Don’t have to provide information not already available.
• Not obligated to create information you don’t already have
• Can charge reasonable fee for producing a report
• Do this in a timely manner
*All public documents are subject to FOIA
Diagram of Life Cycle of an Issue
A= Awareness of issue (Starts at grassroots)
D= Debate of issue (public debate)
L1= Legislation (gov’t gets involved- government decides what it will pay attention to)
R= Regulation (How you implement the legislation)
L2= Litigation (brining suit)
Law as a Government Function
Legislative branch creates laws
Executive branch implements laws
Judicial branch interprets the law and applies it to a case
Judicial Interpretation of the Constitution
Judicial Constitutionalists view constitution literally and take narrow view
Judicial Activists have broader view of constitution and see this as a living document
Example: Gun Control
Functions of Law (Courts):
1. Settle disputes
2. Establish and maintain order
3. Protect individuals and property
4. Promote the general welfare
Sources of Law
1. State and federal constitutions
2. Statues- laws passed by feds or state
3. Case law- decisions of the courts
Secondary Sources of Law
1. Administrative rules and regulations
2. Contracts- (agreement between two parties)
3. International law- if you operate in another country their law applies
4. Attorney General opinion- have force of law until ruled on by court of general assembly
5. University rules and regulations- can create legal obligations
6. Custom and Tradition- done year after year. If you have rule and ignore it this may become custom and obligate
Theories of Case Law
1. Precedent- Judges take prior rulings into account
2. Stare Decisis- decisions of upper level courts dictate the lower courts
3. Theory of Declaration- courts declare the law upon its discovery (not making the law)
Functions of the Courts
1. Courts Settle Disputes- someone must bring forward a complaint
2. Interpret the Law
3. Determine the constitutionality of the law (Marbury v. Madison)
Treatment Law
“traditional law practice” reaction to litigation
Preventative Law
Anticipating litigation/risk management
• Hire legal counsel/consult when creating policy
• Train staff on issues most likely to cause problems
• Legal Audit- know risks involved in daily practice & make sure policies keep you from litigation
• Develop early warning systems
• Establish Alternative Mechanisms- (to demonstrate empathy to affected parties, etc.)
Three Theories of State Action
1. Delegation- private agency acts through delegated powers of state
2. Association- private agency is engaged in public function
3. Contract- most obvious- private agency is contracted to provide services for state (Alfred case)
Three ways constitution protection can be extended to private colleges
1. Contract
2. Constitution
3. Choice of the institution
State creates public institutions by
1. Statute/ statutorily (by law)
2. Constitutionally
States Regulate Private HE by
1. Police powers
2. Consumer protection
3. Charter or certify actions (states authorize institutions to grant degree)
Federal Powers and Functions
1. Spending tax payer dollars
2. Taxing (justified general welfare clause (article I section IV)
3. Commerce – feds regulate interstate trade
4. Civil Rights- legislate and provide
Types of Authority
1. Express- authority from plain meaning of what is written or spoken
2. Implied- authority inferred from what has been said or written
3. Inherent- broad use of implied authority
4. Apparent- creation of a belief
Express Authority
authority from plain meaning of what is written or spoken
Implied Authority
authority inferred from what has been said or written
Inherent Authority
broad use of implied authority
Apparent Authority
creation of a belief
Agency Theory
aka “Respondent Superior”- let the master answer (Chain of command)
Historical precedent for why universities have authority to do what they do:
1. Protect moral atmosphere (Anthony v Syracuse)
2. Protect academic integrity of institution
Two exceptions (for public and privates)
1. rules can’t be arbitrary or vague
2. can’t act arbitrary or capriciously ,can’t act in bad faith