Colleges and Universities

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Colleges and Universities

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

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

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

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

The Legal Climate

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

Three general types of laws affect the operation of colleges and universities. State laws affect public and private colleges and universities in the absence of federal laws that supersede them. Federal laws may affect public and private institutions, and they usually affect entities that receive federal funding or that are subject to regulation under the Commerce Clause of the Constitution. The most common such laws are statutes that prohibit discrimination. Finally, the Constitution governs public, but almost never private, institutions.

As state entities, public institutions must conform to constitutional provisions that prohibit the state from discriminating and from denying constitutional rights. Thus, much of the law of public institutions stems from constitutional amendments such as the following:

  • the Free Speech Clause of the First Amendment, which guarantees that the government will not interfere with Freedom of Speech
  • the Free Exercise Clause of the First Amendment, which ensures that the government will not interfere with or outlaw religious expression
  • the Establishment Clause of the First Amendment, which prohibits the government from endorsing or establishing a state religion
  • the equal protection clause of the Fourteenth Amendment, which guarantees that a state will enforce its laws equally with respect to all persons, with certain exceptions
  • the due process clause of the Fourteenth Amendment, which requires the state to provide certain procedural safeguards before depriving an individual of a liberty or property interest. State-run institutions also are subject to state and often federal law.

Private institutions are not governed directly by the Constitution. Instead, they are regulated solely by state and federal law. Since the mid 1960s, federal laws enacted pursuant to Congress's power to regulate interstate commerce have enabled the federal government to regulate much private university activity that the Constitution cannot reach directly. Such federal statutes often protect against discriminatory behavior not otherwise foreclosed by the Constitution, such as discrimination based on age or disability. Accordingly, a university may not discriminate merely because it is a private entity. The most important statutes governing the behavior of private universities are the same statutes regulating public accommodations, employment, and federally funded activities:

  • Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a et seq., which prohibits discrimination on the basis of race by entities that receive federal funding
  • Title VII of the civil rights act of 1964, which prohibits discrimination on the basis of race, color, national origin, gender, or religion, by entities employing a certain number of workers (generally 15)
  • Title IX of the Education Amendments of 1972 (codified in scattered sections of 7, 12, 16, 20, and 42 U.S.C.A.), which prohibits discrimination on the basis of gender by entities that receive federal funding
  • the Age Discrimination in Employment Act, 29 U.S.C.A. § 621 et seq., which prohibits employment discrimination on the basis of age against individuals between the ages of 40 and 70 by entities employing a certain number of workers (generally twenty)
  • the Americans with Disabilities Act of 1990, codified in scattered sections of 2, 29, 42, and 47 U.S.C.A., which prohibits discrimination on the basis of disability in public accommodations, transportation, and employment, by a wide range of privately owned entities
  • the Rehabilitation Act of 1973, 29 U.S.C.A. § 701 et seq., which prohibits discrimination on the basis of disability by entities that receive federal funding
  • the Higher Education Act, 20 U.S.C.A. § 403 et seq., which establishes federal financial aid programs and the conditions accompanying them; the Education Department (until 1980, the Department of Health, Education, and Welfare) administers Title VI, Title IX, and the Higher Education Act.

Racial Discrimination

The Equal Protection Clause and Public Institutions The Equal Protection Clause of the Fourteenth Amendment prohibits a state from denying to individuals the equal protection of the laws. This clause requires, among other things, that a state and its instrumentalities may not treat members of different racial or ethnic backgrounds differently unless the discriminatory action is necessary to achieve a compelling government purpose and is narrowly tailored to satisfy that purpose. Despite the Fourteenth Amendment's passage in 1870, public higher education in the United States remained legally segregated on the basis of race until the mid-1950s. This de jure (i.e., legally sanctioned) Segregation may be traced to a pre-Civil War decision by the Massachusetts Supreme Court upholding the legality of segregated schools in the heart of abolitionist territory (Roberts v. Boston, 59 Mass. [5 Cush.] 198 [1849]).

After the Civil War, Congress outlawed Slavery and made discrimination by the state unconstitutional, with the Thirteenth and Fourteenth Amendments to the Constitution. Not much changed, however, as states, obligated to provide all citizens with the equal protection of the laws, devised bifurcated educational systems that provided white citizens with one set of schools and black citizens with a supposedly parallel, but grossly underfunded and qualitatively inferior, set of schools. These systems were approved by the U.S. Supreme Court as "separate but equal" in Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S. Ct. 197, 44 L. Ed. 262 (1899).

Public centers of higher education also remained segregated and unequal. Many states established dual systems of higher education. A number of states established whites-only flagship campuses, with separate blacks-only campuses that received less funding and fewer resources; others simply refused to admit black students.

In the early twentieth century, the National Association for the Advancement of Colored People (NAACP) began its attack against segregated schools at the university level, where it won a series of cases that eroded the separate-but-equal principle. In the first of these cases, decided under the Equal Protection Clause, the U.S. Supreme Court ruled that a state could not avoid training qualified black law students by providing them tuition payments to out-of-state law schools rather than permitting them to attend an in-state school (Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 [1938]). Next, in McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950), the Court held that the University of Oklahoma could not force its only black graduate student to sit in a hallway adjoining the classroom in which a course was offered, nor could it require the student to sit behind a railing marked "Reserved for Colored." Finally, in Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), the Court found that a proposed blacks-only law school in Texas would be unequal to the prestigious and then-all-white University of Texas Law School not only in the quality of its tangible facilities but also in the quality of such intangibles as reputation and education.

Despite these early victories, de jure racial segregation of public colleges and universities did not become illegal until the Court decided brown v. board of education of topeka, kansas, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Following Brown, schools throughout the United States were required to adopt desegregation policies, but de facto (i.e., actual) segregation remained in many university systems.

Litigation in the federal courts continues more than 40 years after Brown. In 1992, the U.S. Supreme Court held that the state of Mississippi had failed to satisfy its duty to desegregate the state university system, in United States v. Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992). In Fordice, the state had eliminated its requirement that blacks and whites be educated separately, but allowed previously white schools to remain distinct from previously black schools, and inaccessible to black students. By the mid-1980s, previously all-white schools in Mississippi remained over 80 percent white and previously all-black schools remained over 90 percent black. The Court found that the state's policy of requiring higher American College Test (ACT) scores for admission to white schools than to black schools perpetuated the state's formerly de jure dual system because it effectively foreclosed many black students from attending white schools and forced them to attend black schools, which received less funding. The Court ruled that merely abolishing legal segregation and implementing race-neutral policies (i.e., policies that purport to treat individuals equally without regard to race) did not satisfy the state's duty to desegregate. Instead, the Court held, if schools or school policies maintain racially identifiable characteristics that can be traced to State Action, the state may be deemed to perpetuate former discriminatory practices in violation of the Equal Protection Clause. In the wake of Fordice, federal courts re-examined segregated systems of higher education in several states (Knight v. Alabama, 14 F.3d 1534 [11th Cir. 1994]; United States v. Louisiana, 9 F.3d 1159 [5th Cir. 1993]).

Federal Law and Private Institutions In 1964, in response to the slow pace of racial reform, Congress passed the Civil Rights Act of 1964, which prohibited discrimination on the basis of race (and sometimes gender) in public accommodations, federally funded programs, and employment. Title VI of the act prohibits discrimination "on the basis of race, color, or national origin," in "any program or activity receiving Federal financial assistance," which includes many centers of higher learning in the United States. Title VI reaches state and private schools that receive direct federal funding. It also reaches some institutions that receive no direct federal aid but that have a significant proportion of students who do (Grove City College v. Bell, 465 U.S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 [1984]).

Affirmative Action Beginning in the late 1960s, in response to the Civil Rights Movement, many universities began adopting Affirmative Action policies. Such policies attempt to encourage or to promote racial equality by ending de jure inequalities that remain even though legal inequalities have been abolished. In the beginning, many institutions employed quotas that reserved a certain number of spots for applicants of racial minorities. Other institutions considered membership in a racial minority as one variable in determining whether to admit a student.

It was not long before affirmative action policies came under legal attack as "reverse discrimination." The first serious challenge to affirmative action, regents of the university of california v. bakke, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), fundamentally changed its structure. In Bakke, Allan Bakke, a civil engineer of Norwegian descent, applied for admission to a medical program at the University of California. The program in question set aside 16 spaces for minority students out of a class of 100. Candidates for the set-aside spaces did not have to meet the minimum grade-point-average threshold established for other candidates. Although Bakke's grade-point average fell slightly below the minimum, he argued that he would have been admitted on an evaluative basis if the set-aside spots had not existed. He sued the university under Title VI and the Equal Protection Clause, arguing that the affirmative action program discriminated against him on the basis of his race. The U.S. Supreme Court found that the university's affirmative action program violated Title VI because it used strict racial quotas to determine admission.

The Court found that the program also violated the Equal Protection Clause, because it was not narrowly tailored to meet a compelling government interest. The Court observed that the program was designed to remedy the effects of general societal discrimination (a legitimate, but not compelling, government interest), not its own specific discriminatory practices, which might constitute a compelling interest. Nonetheless, the Court held that the use of race as one criterion in determining admission does not violate either Title VI or the Fourteenth Amendment. In doing so, it did not prohibit all consideration of race in admission decisions, noting with approval certain programs that take race into account to promote educational diversity.

Following Bakke, programs that set aside a fixed number of spaces for minority students no longer constituted an acceptable means of affirmative action. Most universities that maintained affirmative action programs adopted the type of program approved in Bakke, which permits the consideration of race in admission or scholarship decisions in order to encourage diversity. Some schools also introduced scholarships that were designed to benefit only certain groups, such as students belonging to a particular race. Beginning in the mid-1980s, as the U.S. Supreme Court began holding that affirmative action programs designed to remedy the effects of past discrimination would need to satisfy the same strict standards as other race-based classifications (City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 [1989]), race-restricted scholarships became the focus of lawsuits.

In Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), the U.S. Court of Appeals for the Fourth Circuit considered a challenge to the University of Maryland's Banneker Scholarship program, a merit-based scholarship for which only black students were eligible. Daniel J. Podberesky, a Hispanic student, qualified for the Banneker Scholarship in all respects but race. He sued the university, alleging that the scholarship program discriminated on the basis of race. The university countered that the program was designed to remedy the institution's own past discrimination, which had led to the underrepresentation of black students at the university. The court held that the Banneker program violated the Fourteenth Amendment because it was not narrowly tailored to remedy the effects of the university's past discrimination.

Gender Discrimination

Segregated Public Institutions The Equal Protection Clause does not require states to satisfy the same strict standards for gender discrimination as for racial discrimination. Whereas states are held to a "strict scrutiny" requirement with regard to racial discrimination, they need only demonstrate that discrimination on the basis of gender substantially furthers an important government purpose.

The men-only policies maintained by the Virginia Military Institute (VMI) and the Citadel, of South Carolina, have been challenged throughout the years by women seeking admission. In the early 1990s, the U.S. Court of Appeals for the Fourth Circuit considered two unrelated cases that challenged the legality of men-only public colleges: Faulkner v. Jones, 51 F.3d 440 (1995), cert. denied, 516 U.S. 910, 116 S. Ct. 331, 133 L. Ed. 2d 202 (1995), and united states v. virginia, 44 F.3d 1229 (1994), cert. granted, 516 U.S. 910, 116 S. Ct. 281, 133 L. Ed. 2d 201 (1995) (hereinafter VMI).

The same court reached two different results in VMI and Faulkner, because Faulkner involved an individual plaintiff who had sought admission to the Citadel, whereas VMI was brought by the department of justice and did not involve a particular student.

In Faulkner, the Court required the Citadel to admit the plaintiff, Shannon Faulkner, because Faulkner was a "real live plaintiff." The court explained that, although admission to the school was the only appropriate remedy in a case involving a live plaintiff, the state might later develop a parallel program, as recommended in VMI, or adopt a coeducational policy.

In VMI, the court held that because "homogeneity of gender" was integral to the type of leadership education provided at VMI, maintaining a men-only college substantially furthered the legitimate public purpose of providing unique leadership education. It then held that the establishment of a separate-but-parallel, state-sponsored women's college with substantially the same goals as VMI's would satisfy the requirements of the Equal Protection Clause. Faulkner withdrew shortly after the school year began, putting an end to any possible appeals in her case. However, the Court did hear the government's appeal from the VMI decision and held that Virginia's categorical exclusion of women from VMI denied equal protection to women (United States v. Virginia, 116 S. Ct. 2264). The Court agreed that gender-based classifications are not completely forbidden by the Equal Protection Clause, but it stated that Virginia had failed to provide "exceedingly persuasive justification" for excluding women from VMI. In addition, the Court held that the separate-but-parallel women's college that Virginia had proposed violated the Equal Protection Clause, terming the women's college a "pale shadow of VMI" in terms of its educational and leadership opportunities.

Title IX Eight years after Congress enacted Title VI of the Civil Rights Act of 1964, it amended the act to extend protection against discrimination in federally funded programs to include gender. Title IX of the Education Amendments of 1972 parallels Title VI and has been used to attack gender discrimination in such diverse areas as admissions, scholarships, discipline, and Sexual Harassment. For example, in Sharif v. New York State Education Department, 709 F. Supp. 345 (S.D.N.Y. 1989), a federal district court held that the state of New York could not use Scholastic Aptitude Test (SAT) scores as its sole criterion for awarding college scholarships, without violating Title IX. Because girls scored an average of 60 points lower on the test than boys did, and because the SAT was not, and did not purport to be, a measure of past performance in school, the court ruled that its use had a discriminatory effect on the awarding of scholarships without bearing any relationship to a reward for successful performance in high school. In Yusuf v. Vassar College, 35 F.3d 709 (1994), the U.S. Court of Appeals for the Second Circuit held that a private college may have discriminated against a male student who allegedly sexually harassed a female student, by systematically applying different and stricter standards to sexual harassment proceedings than to other disciplinary proceedings. And in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992), the U.S. Supreme Court held that Title IX also prohibits sexual harassment in educational institutions and that teachers who sexually harass or abuse students discriminate on the basis of sex in violation of Title IX.

Title IX's most visible effect has been in college athletics. Most colleges and universities operate men's and women's athletic programs, some of which participate in intercollegiate competitions administered by the National Collegiate Athletic Association (NCAA). Title IX caused a great deal of concern when first enacted, as many schools were concerned that they could not remedy unequal participation by men and women in various athletic programs without going to considerable expense or cutting successful programs to achieve gender equality. These schools also were uncertain about the degree of equalizing that would be necessary in order to avoid lawsuits.

In response, the Department of Health, Education, and Welfare (now the Department of Education) established a three-part test for determining whether an institution is complying with Title IX with respect to its athletic program. An institution has accommodated the interests of male and female students if it satisfies any of the three benchmarks:

… intercollegiate-level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; orWhere the members of one sex have been and are underrepresented among intercollegiate athletes, … the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or

Where members of one sex are under-represented among intercollegiate athletics and the institution cannot show a continuing practice of program expansion, … it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program (44 Fed. Reg. 71,418 [1979]).

The balance between a university's interest in maintaining a profitable and successful athletic program and its need to comply with Title IX is a delicate one. In Kelley v. Board of Trustees, 35 F.3d 265 (1994), the U.S. Court of Appeals for the Seventh Circuit addressed a typical case involving these competing interests. In Kelley, the men's swim team at the University of Illinois sued the university for violating Title IX after the school cut the men's, but not the women's, swimming program in an attempt to eliminate unprofitable athletic programs and to reduce its budget deficit. Although neither swim team was popular with spectators, and both programs were historically weak, the university did not cut the women's program because its legal counsel advised that doing so would violate Title IX. The court ruled that eliminating the men's program, but retaining the women's program, did not violate Title IX even though the school treated the two programs differently.

Although Title IX continues to have many critics, the effect that it has had upon women's athletics is practically unquestioned. Twenty-four years after the enactment of Title IX, the number of female athletes at the Olympic Games in Atlanta had risen to 287. The interest among spectators was almost startling, especially because women's athletics had suffered for years in order to garner support. About 65,000 fans watched the women's soccer team in 1996 win the gold medal, and another 35,000 spectators watched the women fall in the finals of the softball competition.

Interest in women's sports continued to increase throughout the 1990s. Although several professional women's basketball leagues had been established, few were successful. This changed in 1997 with the establishment of the Women's National Basketball Association (WNBA), which garnered support from the established National Basketball Association. The league has had unprecedented success, maintaining contracts with television networks that show the games. The focus on women's athletics expanded to a national scale in 1999, when the United States women's soccer team won a stunning victory in the World Cup competition. Neither the men's nor the women's soccer teams had had success in world-class competition, and the women's victory transformed many of the female athletes to celebrity status.

Few question that these events would have occurred were it not for Title IX. Women's college basketball, probably the highest-profiled sport for female athletes, typically receives equal attention as the corresponding men's programs. Likewise, softball and soccer have gained popularity among individual schools as spectator sports. Nevertheless, college and universities continue to pour extensive resources into larger men's program, especially football and men's basketball.

Many athletic departments note that these men's programs earn more revenues based upon a much larger fan base, so the support is justified. Athletic departments often chose to drop minor men's sports instead of adding women's sports, citing the budgetary constraints. Advocates for women's programs counter that cutting the budgets of these programs would not likely hinder the revenues significantly and that it would allow athletic programs both to add women's programs and to retain smaller men's programs.

Policies under the administration of President george w. bush have come under fire from supporters of women's athletics. During his campaign, Bush stated his opposition toward any racial or gender quotas, and some felt that this policy could cause conflict with Title IX. In 2002, the secretary of education established the Commission on Opportunity in Athletics, which issued its final report on February 28, 2003. Although the commission found that opportunities should be improved for all competitors, women's groups claimed that the report undermines the importance of improving opportunities for women's programs specifically.

Academic Freedom: The Right to Speak Freely

The First Amendment prohibits the federal and state governments from infringing on freedom of speech. Not surprisingly, freedom of speech, which is central to academic freedom, is highly prized on college and university campuses. At the same time, most educational institutions recognize the importance of maintaining an atmosphere in which all students enjoy equal educational opportunities and freedom from discrimination. The need to balance differing individual rights has led many universities to enact policies purporting to regulate or discipline certain types of speech, and was the focus of many First Amendment cases in the 1980s and early 1990s.

Racially and religiously motivated acts of Vandalism, intimidation, and violence on college campuses began to attract increased attention in the mid 1980s. Much of this activity involved incidents like the following:

  • A fraternity fund-raising "slave auction" featuring fraternity members in blackface who were "sold" to provide services to bidders
  • The distribution at a state school of leaflets warning,"The Knights of the Ku Klux Klan Are Watching You"
  • A poster made by a student and hung on her dormitory room door, listing "homos" as a category of people who would be "shot on sight"

In response, many universities adopted policies that prohibited speech and conduct that caused offense or interfered with educational opportunities based on any number of characteristics, especially race, national origin, gender, and religion. The University of Michigan adopted a typical policy on discrimination and discriminatory harassment that became the subject of a lawsuit in 1989. In Doe v. University of Michigan, 721 F. Supp. 852 (1989), the U.S. District Court for the Eastern District of Michigan examined this policy and determined that it violated the First Amendment because it was vague and overbroad—that is, it was unclear about the scope of the speech that it would affect and thus potentially encompassed constitutionally protected speech. Doe was filed by a graduate student who feared that his theories about genetic bases for differences between men's and women's relative abilities to perform certain tasks would be regarded as a violation of the policy were he to discuss them in class, because some students might regard them as sexist and offensive.

The court agreed that the university policy violated the First Amendment and had a "chilling effect" on the free exchange of ideas. The court observed that the policy certainly applied to speech that would not be constitutionally protected, such as imminent threats of violence, but also swept under its umbrella speech that might be controversial or even offensive but otherwise constitutionally protected. "It is firmly settled," noted the court,

that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. These principles acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's education mission.

The court then observed that because Michigan's policy was so vague that it encompassed even constitutionally protected speech, and because this vagueness led to the potential for Arbitrary enforcement, the policy was unconstitutional.

First Amendment protection is not limited to the classroom setting alone. In Iota Xi Chapter v. George Mason University, 993 F.2d 386 (1993), the U.S. Court of Appeals for the Fourth Circuit held that George Mason University, a state university, had violated the Sigma Chi Fraternity's First Amendment rights by suspending its privileges as a university organization after the fraternity held an event, called the Ugly Woman Contest, that depicted women in a particularly degrading manner. The court held that skits, like motion pictures, movies, theatrical productions, and nude dancing, are a form of expression that are entitled to First Amendment protection.

Public university professors and employees also enjoy First Amendment protection, but as workers in the public sector, they are subject to certain limits. Generally, unlike private-sector employees, who may be disciplined or terminated for nearly anything that is not prohibited by state or federal law, public-sector employees may not be disciplined on the basis of their speech if the speech involves a matter of public concern. The state may discipline an employee if it can show that it would have done so regardless of the speech, or if the speech actually interfered with the effective fulfillment of public responsibilities.

In Jeffries v. Harleston, 52 F.3d 9 (1995), the U.S. Court of Appeals for the Second Circuit held that the City College of New York could reduce the term of a black studies professor's chairmanship based on an off-campus speech he had made (which had included derogatory remarks about Jews) about bias in the New York public-school system. The court ruled that although the speech involved an area of public concern, the college was justified in reducing Jeffries's term because it was motivated by a reasonable prediction that the speech would adversely affect the school's operation. In an earlier case, the same court had held that the City College of New York could not undermine a philosophy professor's classes by setting up "alternative" sessions for students who might want to transfer out of the classes after the professor had published letters to scholarly journals that denigrated the intelligence of blacks (Levin v. Harleston, 966 F.2d 85 [1992]).

Even so, not all speech by public university employees is protected. Employees still may be disciplined for speech that does not involve an area of public concern, as the courts have defined it. In Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), aff'd, 55 F.3d 1177 (6th Cir. 1995), the district court upheld the termination of a basketball coach who used the term nigger in a locker-room pep talk. The university refused to renew the coach's employment contract, arguing that his use of the term violated the university's policy on racial and ethnic harassment. Although the court found that the school's policy violated the First Amendment (for the same reasons as in Doe), it also found that the coach's speech did not involve an area of public concern.

A public institution also may restrict religious speech by faculty if failure to do so would violate the First Amendment's Establishment Clause (Bishop v. Aronov, 926 F.2d 1066 [1991]). In Bishop, the U.S. Court of Appeals for the Eleventh Circuit held that the University of Alabama could constitutionally restrict a professor from discussing his religious views during class, and could instruct him not to hold optional class sessions to discuss Christian perspectives on academic topics. The court noted that were the professor permitted to engage in these activities, the university would risk violating the Establishment Clause, which prohibits states from establishing religion and, by extension, extending preferential treatment to, or endorsement of, a particular religious view.

Religion and Public Funding

The Establishment Clause prohibits states from establishing an official religion. Thus, a public university may not denominate itself as a religious school, nor may the state directly fund a private religious school. At the same time, the Free Exercise Clause prohibits states from restricting individuals in the practice of religion. Thus, a public university may not permit all student groups except for religious groups to use its facilities. Maintaining a balance between the two clauses is not simple, and it has generated controversy in two principal areas: the extent to which the state may fund attendance at private religious schools indirectly, and the extent to which public schools may fund religious activities on campus directly.

Public Funding of Private Religious Practice In 1971, the U.S. Supreme Court decided Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), which defined the scope of the Establishment Clause. In Lemon, the Court held that a state policy or practice violates the Establishment Clause if it fails to satisfy a three-part test: First, the policy must serve a secular purpose. Second, the primary effect of the policy cannot be to advance or inhibit religion. Third, the policy cannot foster an excessive entanglement of the state with religion.

Unfortunately, the Lemon test is easier to state than to apply, and it has led to numerous lawsuits concerning the relationship of state-funding programs to private religious organizations. Generally, a state law that provides benefits to individuals without regard to religion does not violate the Establishment Clause even if an individual uses the state benefits for a religious purpose. For example, in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S. Ct. 748, 88 L. Ed. 2d 846 (1986), the U.S. Supreme Court held that a blind Washington resident was eligible for state vocational rehabilitation assistance, even though he planned to use the funds to complete his religious training at a Christian college. The Court held that payment of public assistance by the state satisfied the Lemon test because the aid was provided directly to the individual, was not skewed toward religion in any way, and created no financial incentive for students to undertake religious education. Furthermore, the Court noted that the primary effect of the assistance program was not to advance religion and that religious programs would not benefit in any significant or disproportionate way from the state program.

In contrast, in Stark v. St. Cloud State University, 802 F.2d 1046 (1986), the U.S. Court of Appeals for the Eighth Circuit held that a state university violated the Establishment Clause by permitting education students to satisfy their student-teaching requirement at parochial schools. The court noted that the public university approved the use of religious schools, including them on a list of appropriate schools for student teaching, and that because of this, the university had entangled itself excessively with religion.

Public Schools and Religious Activity Funding of religious activities in public schools requires similar Balancing. The U.S. Supreme Court held in 1995 that a public university may fund a student-run religious publication without violating the Establishment Clause. In Rosenberger v. Rector of the University of Virginia, 515 U.S.819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995), a sharply divided Court considered a Christian student group's claim that the university's refusal to pay the publication costs of its newspaper, even though it paid the costs of printing other student publications, violated the Free Speech Clause of the First Amendment. The university had convinced the U.S. Court of Appeals for the Fourth Circuit that it had a compelling interest in not funding the newspaper: specifically, to avoid violating the Constitution's Establishment Clause, which prohibits the government from establishing, or promoting, religion. Before the U.S. Supreme Court, the university backed off on this argument and instead stated that it had a right to be selective in its choice of recipients of public funds (i.e. university student fees). The Court considered both arguments and found that the university's policy regarding the distribution of monies from student fees was neutral, that is, that it could not be seen as a policy designed to advance religion; the Court therefore concluded that the free speech rights of the student publication prevailed and ordered the university to pay the publication costs of the Christian student group's newspaper.

Termination of Employment Claims

Colleges and universities have often been the subject of lawsuits by former employees who have been terminated. Many of these claims arise when an institution refuses to grant tenure to a faculty member. In most educational institutions, teachers and other faculty members are not guaranteed permanent employment when they are hired for a teaching position. The institution generally requires the teacher or professor to achieve certain goals, such as publishing scholarly articles or demonstrating superior teaching skills, within a prescribed period of time, often six to eight years. In state institutions, the process for granting tenure is usually prescribed by statute.

At the conclusion of this time period, an institution reviews the performances of the teacher, professor, or other employee. If the review is favorable, the institution may award tenure to the employee. Although tenure does not necessarily guarantee lifetime employment, it provides considerable protection for the employee from being terminated by the institution. On the other hand, if the employee is denied tenure, he or she will not be retained as an employee of the institution.

More often than not, disgruntled former employees lose their cases when they contest denial of tenure. Many contest the tenure process, while others claim breach of contract on the part of the institution. Additionally, several courts have had to consider whether a college or university has violated the constitutional rights of an employee by denying him or her tenure. For example, in Hendrich v. Board of Regents of University of Wisconsin System, 274 F.3d 1174 (7th Cir. 2001), the complainant claimed that the University of Wisconsin at Whitewater had violated her equal protection and due process rights when the school denied her tenure. The U.S. Court of Appeals for the Seventh Circuit denied her claims, finding that she had failed to meet the necessary Burden of Persuasion on these issues.

Further readings

Census Bureau. Statistical Abstract of the United States. Available online at <www.census.gov/statab/www/> (accessed November 11, 2003).

Eisenberg, Theodore. 1996. Civil Rights Legislation: Cases and Materials. 4th ed. Charlottesville, Va. Michie.

Giamatti, A. Bartlett. 1988. A Free and Ordered Space: The Real World of the University. New York: Norton.

Grossman, Joel B., and Richard S. Wells. 1988. Constitutional Law and Judicial Policy Making. 3d ed. White Plains, N.Y.: Longman.

Journal of College and University Law. Various issues.

Kaplin, William A., and Barbara A. Lee. 1997. Legal Guide for Student Affairs Professionals. San Francisco: Jossey-Bass.

——. 1995. Law of Higher Education. 3d ed. San Francisco: Jossey-Bass.

Cross-references

Religion; School Desegregation; Schools and School Districts.