CLASS: Education Law
PROFESSOR: Jack Bernard
SEMESTER: Spring 2010
U. of West Indies – questions about how to balance rights of faculty and institution; applicability of law; academic freedom in distance education
Germany (German university presidents) – Faculty role in governance; protecting academic freedom within limits (e.g., no Holocaust denials); tenure and due process; also struggling with affirmative action issues (immigrants from Turkey and other countries).
India: Reporter asking about our cases, noting how often Bakke is cited.
Why is this course important?
Education is not separate from the “real world” – it is a huge part of it (concept of lifelong learning) – education is big business!
The law reflects its unique mission in our society – our higher education system is best in the world, and the most complex (public and private, many different types of institutions).
It combines elements of almost all areas of law, but the unique educational and research mission (see Beach article) is the constant undercurrent.
(Question: How unique is it, and is that changing?).
Some Themes of the Course:
(1) Exercise of discretion and professional judgment (academic freedom and educational mission)
Academic freedom reflects and reinforces the fundamental mission of higher education – the marketplace of ideas/search for truth.
Educational institutions are unique – not because we’re smarter than everyone else, but because our mission is different. (Beach article: Universities are essentially “public trusts,” and their trustees are trustees for the public.) (see p. 35)
Our mission is not necessarily to be as efficient as possible – learning can be messy, and disputes and process can be an important part of learning.
(2) Defining and applying the concept of due process
How to define and apply due process in higher education (statutes and precedents usually don’t have lots of detail; we have lots of latitude)
Importance of due process as an educational tool – and why colleges and universities are not the same as courts
Importance of consistency and training of individuals involved in processes (faculty, staff, and students) where it’s not their full-time job
(3) Balancing competing rights and interests in higher education
Need to identify various constituencies involved in an issue in higher education and their interests
Question: What are some of these constituencies?
· Students
· Faculty
· Staff
· Administration
· Alumni
· Trustees/Regents
· Politicians: Legislators, governors, etc
· Accrediting bodies
· General public/taxpayers
· Media
Ex.: admissions lawsuits (Who are the players? Note the amicus participants.)
speech v. harassment
appropriate role of religion (e.g., Davies case)
There are few absolutes in the law – much of the law is balancing tests, not bright-line rules
INTRODUCTION TO HIGHER EDUCATION LAW
Sources of Law
Constitutions
Federal (says nothing about education)
State (many establish systems of higher education)
Statutes (e.g., discrimination statutes such as Title VI, Title IX, ADA, Section 504 of Rehabilitation Act, ADEA; FERPA)
Administrative rules and regulations (e.g., Department of Education on financial aid; Office for Civil Rights policy and enforcement [note examples of policy guidance on racial harassment and race-targeted financial aid])
State common law (judge-made law) – e.g., contract and agency law
International law (e.g., related to foreign campuses, faculty and student trips and exchanges, contracts)
Institutional rules and regulations (ex.: Bylaws and SPG here at the University of Michigan; faculty handbooks)
Accrediting agencies
Other governing bodies (NCAA, conferences, Vatican)
Contracts (including collective bargaining agreements)
Academic custom (ex.: academic freedom; AAUP policy statements)
Case Law (note distinctions between elementary and secondary and higher education)
Some General Trends
Increased litigation (employment, tenure, students, etc.) – courts sometimes defer less to educational judgments (how to define what is “academic” v. what is disciplinary, conduct, or procedural – see Beach article)
Increased regulation (federal and state – compliance issues, reporting, etc. – e.g., campus crime)
More institutional self-regulation (guidelines, regulations, etc.)
Financial pressures (rising costs, loss of government support, etc.)
Increased use of technology (Internet, online education)
Relationships with the corporate sector (e.g., research funding)
Increasing diversity (many new students, including non-traditional and foreign students, seeking higher education)
Growth of in-house counsel (including preventive and specialized work); National Association of College and University Attorneys (NACUA)
ACADEMIC FREEDOM
The concept has a long history.
German universities had two concepts of academic freedom:
Lehrfreiheit: Freedom to teach – professors should be free to conduct research and publish findings without fear of reproof from the church or the state (adopted by AAUP in the 1915 Declaration).
Lernfreiheit: A corollary right of students to determine the course of their studies for themselves.
The purposes of universities (see course pack p. 37, under #3) – compare to the functions noted by the Supreme Court in the Grutter (University of Michigan Law School) decision.
Institutional (freedom from external forces) v. individual (freedom from institutional constraints)
academic freedom – can be complementary, or in tension (see Rabban article)
Academic freedom is not just limited to what the Constitution and the law protect. (Rabban)
1915 Declaration of Principles on Academic Freedom and Academic Tenure
At the time, professors were being fired because of their views on the gold standard (radicals seen as a threat to the social order).
Universities should be a haven from political whims – a place where unpopular ideas can be discussed and considered.
Comparison of faculty to judges appointed by the president (they have responsibilities to the public, not just to a political leader).
1940 Statement of Principles on Academic Freedom and Tenure
Introduction:
· Purpose it to protect the common good (not just the interests of individual faculty or institutions)
· The common good depends upon the free search for truth and its free exposition. (Does anyone disagree with that statement? Who might?)
Tenure is a means to certain ends:
· Freedom of teaching, research, and extramural activities.
· A sufficient degree of economic security to make the profession attractive to men and women of ability.
Academic Freedom includes rights and corresponding responsibilities:
a. Teachers are entitled to full freedom in research and in the publication of results, subject to the adequate performance of their other academic duties – BUT research for pecuniary return should be based upon an understanding with the authorities of the institution.
b. Teachers are entitled to freedom in the classroom in discussing their subject, BUT they should be careful not to introduce into their teaching controversial matter which has no relation to their subject.
Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment. (Limitations Clause)
* Note statement #3 (1970): “Most church-related institutions no longer need or de
Note the nature of the freedoms mentioned here—all relate to the educational functions, but do not establish unbridled autonomy in making all decisions.
Levin (p. 140) and Jeffries (p. 146) (Two faculty at the same institution, CUNY)
Levin:
· In his writings (letters, book reviews), Professor Levin expressed racially denigrating theories outside the classroom (denigrating the intelligence and social characteristics of blacks).
· In response, CUNY dean created alternative “shadow classes” for his students to transfer into, if they so desired.
· None of his students had ever complained of unfair treatment on the basis of race.
· President created advisory committee to determine whether Levin’s views affected his teaching ability.
The court found no evidence that Levin’s expressions of theories outside the classroom harmed the students and the educational process within the classroom. It focused on the “chilling effect” on speech resulting from CUNY’s actions.
Jeffries:
· Black-studies professor sued university officials for allegedly removing him as department chair because of controversial off-campus speech. In the “Albany speech,” Jeffries addressed the bias of NY State’s public school curriculum and the history of black oppression—and made several derogatory statements, particularly about Jews.
Court: Jeffries’ academic freedom was not infringed by reducing his term as department chair because of his speech (which involved a matter of “public concern”). Why not? Because the position of chair was “purely ministerial,” and provided no greater public contact than an ordinary professorship.
– He was still a tenured professor, and the defendants had not sought to silence him, or otherwise limit his access to the “marketplace of ideas” in the classroom.
Court says that the trustees acted upon a reasonable belief that Jeffries’ speech would cause harm to CUNY.
Question: Why are they treated differently? Remember the 1940 Statement – rights and responsibilities
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SMALL GROUP DISCUSSION – Professor Rasmusen, Indiana
Facts/Questions to Consider
How is the website labeled (personal v. institutional), and how clear is its role
What do other faculty do on their websites/blogs
What is the relationship to his area of expertise, if any?
Impact on gay students in and outside his classes
Any other evidence that he treats students differently on this basis?
What if he served on a university committee on discrimination issues (or on a judicial board handling a case involving alleged discrimination against a gay student, etc.)
Some Constituencies to Consider:
Students
Other Faculty
Alumni
State legislators
General public
GLBT community
Media
Some Policy Issues:
Statements by University leadership (see O’Neil article)
Compare to Levin and Jeffries cases and the school’s response in each case
Provision of websites to faculty (as well as staff and/or students also), and any restrictions on their use
Speaking as individual v. spokesperson for University
