Higher Education Law

In lieu of parents

Gott, restaurant owner, sued because Berea College students were forbidden to eat off campus.Courts ruled in favor of Berea College saying that because of "in loco parentis" college officials can for the physical and moral welfare of the student set rules and regulations for the betterment of the students just as parents would.

Anthony was said to have immoral behavior while attending Syracuse (sitting on a man's lap in a car) and was dismissed as a student. She sued Syracuse saying it was a breach of contract. Her registration card stated you have to "safeguard ideals of...moral atmosphere". She said she never saw this. Not legally binding argument. Holding:The University may only dismiss a students for reasons falling within the contract of safeguarding the University's ideals of scholarship and moral atmosphere.

• 1. Meeting of the minds of both parties regarding terms of the contract.
• 2. Valid Consideration with respect to what it is to be performed and compensation for that performance.
• 3. Legal subject matter that the activities are not illegal or contrary to public policy.
• 4. Must be entered into by competent parties (sound mind and no children).
• 5. Sufficiently clear terms so that each party understand what is required.
• 6. May be terminated due to breach of terms by either party or upon the submission of a resignation and it's acceptance by the other party.

A privilege (Anthony v Syracuse).

Student killed by another student obsessed with her and had told the counselor he was going to kill her. University psychiatrist had a duty to warn her because foreseeability of harm, the degree of certainty for her injury and the policy to prevent future harm. "A university owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous."

• 1. Must establish that the defendant was under a legal duty to act in a particular fashion.
• 2. Must demonstrate that the defendant breached this duty by failing to conform his or her behavior accordingly.
• 3. Must prove that he suffered injury or loss as a direct result of the defendant's breach.

• 1. Parents are provided the right to inspect all school records for their children.
• 2. Parents must consent before the school can release their children's records to agencies other than designated educational entities.
• 3. A student may also give consent in lieu of a parent, provided that the student is 18 years or older.

• PROHIBITS:
• Posting student grades if they are personally identifiable.
• Peer grading.
• Confer a private right of action to sue for damages.

• PROTECTS:
• 1. Information protected by FERPA.
• 2. Information that would violate a person's right of privacy.
• 3. Can't Release library records.
• 4. Can't Release Test Items (TAKS).
• 5. Performance Evaluations or Personnel Files of Public School Employees.

Mullins required to live on campus was raped on campus grounds surrounded by fences and gates. Courts said College had a responsibility to protect students from criminal acts of third parties since this was foreseen and its officers are liable for the safe environment of the college. The defendant's negligent acts proximately caused the plantiff's injury.

Student at Christian College rumoured to be gay. LCC denied him his diploma. He argued that he completed all his courses and credits and by contract, owed a degree. Holding:Courts ruled that a course catalog is a binding document for a contract between students and college. The did breach by denying him a diploma.

Vought applied for a dual, accelerated program. School took him down to undergraduate student but ended up granting him a masters degree. Did the university breach its contract for not granting the combined-degree program? NO. Holding: Contracts define the scope of duties.

Also - a lot of 42 USC cases brought about breach of contracts with universities about programs reference "knew or should have known" before they allowed students to enter into contract if they knew or should have known they would not fulfill their side of the contract due to lack of resources, etc.

• 1. In Loco Parentis regarding rules and regulations (Gott v Berea)
• 2. Campus safety and tort through Foreseeability (Tarasoff, Mullins v Pine Manor).
• 3. Contracts of Mutual Agreement (Anthony v Syracuse, Johnson v LCC, Vought v Teachers College)
• 4. Privacy Rights (FERPA and Texas Govt. Code)
• 5. Attendance in college is a privilege, not a right.

Plantiff said he was judged on non academic admissions criteria (his family's ability to make a pledge for big gift). Can the facts support a charge of breach of contract? YES. Is an action predicated on fraud maintainable? YES. Is this a proper class-action situation? NO. Holding: Contract is agreement between competent parties. ¹An offer, ²an acceptance and ³consideration are basic ingredients of a contract. Misrepresentation in order to constitute a fraud must consist of a statement of material fact, false and known to be so by the party making it, made to induce the other party to act, and in acting, the other party must rely on the truth of the statement.

Bakke didn't get into medical school. He sued on basis that he wasn't allowed entrance b/c of his race. Sued under 42 USC and Equal Protection Clause of the Fourteenth Amendment. Holding: University of California did not violate his rights. Allowing for meaningful access to higher education there is no racially blind method for admissions. Race is an improper classification; keeping a student out because of race is the principal problem. Can take ethnicity into consideration for admission.

Plus system (race considered a preference)

UT Law School's admissions test was argued by Hopwood to be solely based race, not just academic standards. Yielded the "Strict Scrutiny" test. Holding: UT Law School may not use different admission standards based solely on race. It is unconstitutional. The non-preferred applicants were scrutinized under an unconstitutional admissions system based solely on race.

Narrowly Tailored: Policy must mesh so closely with the compelling goal that there is minimal or no possibility of malicious motive behind the policy. Policy must specify race/gender will fix problem without possibility of others being discriminated.

• The Narrowly Tailored Test:
• 1. Show the Necessity.
• 2. Flexibility and duration of proposed relief.
• 3. Potential effectiveness of any alternative remedies.
• 4. Relationship of goals to relevant market.
• 5. Impact of relief on the rights of those burdened by the policy.

• Racial and Gender admissions can be justified by certain compelling government interests.
• 1. Reducing racial isolation for example, student body diversity by means of achieving greater good.
• 2. Need to eliminate the effects of prior discrimination, limited to the following:
• a. Remedy must be in response to a specific discriminatory conduct that can be shown to have caused some consistent harm.
• b. Be designated to specifically address that harm.

Academic - not meeting standards, passing evaluations, meeting approval. Varies by school and judgment.

Discipline - breaking rules, code of conduct. *More due process allowed/given in discipline.

Student got bad evaluations during medical school. She was dismissed from medical school in her final year. She sued based on 42 USC stating she did not receive due process and was deprived a property or liberty interest since she was dismissed. Holding: University did not have to provide procedural due proces for academic dismissals and did not violate her consititutional rights when a property and liberty interest is involved.

• Procedural Due Process in Education System
• 1. Notice (written, verbal)
• 2. Hearing
• 3. Oral Arguments
• 4. Appeal

**Used in Discipline Dismissals.

Grounds and the evidence to document it. Adversarial, cut and dry.

**Used in Academic Dismissmals.

Students were all given suspension in high school. They said it violated their constitutional right to their property interest through 42 USC because school was compulsory and they did not receive due process. The court ruled that they were denied property interest without due process. The ruled that at least the minimum (de minimis) due process must contain ¹oral/written notice of the charges, ²an explanation of evidence, ³present his side of the story.

Student alleged he had a property interest in being enrolled in school and dropped. He was denied the ability to retake a medical school exam. He said his dismissal was arbitrary and capricious, violating his substantive due process rights under 42 USC. No, he is not entitled to a property interest without due process. Academic matters such as this are left us to faculty judgment unless it is such a substantial departure from accepted academic norms.

Plantiffs (6 students) were expelled from Alabama State College and told not to do more demonstrations or eventually would be expelled. They claim they were not given due process. Does due process require some notice and some opportunity for a hearing before being expelled from a public university? YES. Holding: Disciplinary action at any level in the public schools requires adherence to due process as mandated by the Fourteenth Amendment.

Guy questioned in the burning of his dorm room and jumping out his window. He suffered injuries and was not able to return to school. University of Michigan dis-enrolled him after attempted communication and a potential disciplinary accusation. He sued for a lack of due process. No, his situation was different than other students and they were not denying him due process.

Crook said that he discovered a new mineral during an educational trip. He wrote his thesis on his discovery. He was found to have falsified his results for the thesis. Crook was warned that if the charges were proved, his master's degree would be revoked. A hearing before the Regents were held. The University did have a right to revoke his degree and did not deprive him of due process. They did not deprive him of due process by not allowing his lawyer to be present.

Two students at Kent State were found that some discrepancies were on their records and they failed to meet degree requirements. The university notified the individuals of the discrepancies and their intent of potentially revoking their degrees and a hearing was set. Neither showed to the hearing. The Board of Trustees of a university DOES have a right to revoke degrees where ¹ good cause such as fraud, deceit, or error is shown and ² degree holder is afforded a fair hearing at which he can present evidence and protect his interest.

SDS (Student for Democratic Society) were denied right to be an official student organization by the university's president. They sued based on violation of freedom of expression and association through First Amendment. Court said that a university can deny a student organization based on its rules and regulations, and the power to protect itself and its property. A college may not deny official recognition without justification.

Gay student group was not recognized by A&M. University claimed its policy prohibited fraternal or primarily social groups, but they were service-related in their purpose. They sued based on First Amendment violation to organize and freedom of association. Holding: Refusal to recognize a student organization as an on-campus organization impermissibily denied group of their First Amendment Rights.

Did University of Virgina violate the WAP (Wide Awake's Publication) their first amendment rights by refusing to authorize payment of printing the publication with money from the university due to its religious standpoint? Holding: No, they were not singling out the WAP and therefore not denying them their First Amendment rights.

Texas Review Society, an underground paper at UT Austin, were refused the ability to hand out their papers. They were assigned a rack for distribution but said it would not suffice and get vandalized. Holding:University has ability to put a time, place and manner restriction on a student organization without violation it's first amendment rights.

Public Forum defined in this case.

Minnesota Daily printed something the university considered vulgar and sacreligious. University cut their funding. They sued based on violation to First Amendment press and speech rights. Holding:A public university can not constitutionally take adverse action against student newspaper such as reducing funding because it disapproves the content of the paper.

Principal edited and removed stories about family divorce and teen pregnancy in school newspaper to protect the privacy of individuals. Holding:A school may exercise editorial control over style and content of student speech in school-sponsored expressive activities without violating the First Amendment so long as their actions are reasonably related to legitimate pedagogical concerns.

• 1. Traditional public forums - open areas including sidewalks, parks, etc.
• 2. Designated public forums - one where the government has opened up a nonpublic forum to the public, generally to facilitate discussion on issues of public concern. (Town Halls)
• 3. Limited public forums - one where the government has only opened up a nonpublic forum to either a specific group of speakers or for discussion on a very narrow topic. The restriction must not discriminate against speech on the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.
• 4. Non-public forums.

Bourgault v Yudof - evangelist came to UTA, denied from speaking due to limited public forum restrictions with an off-campus speaker policy.

UMKC restricted a religious group, Cornerstone, from meeting on it's campus due to a policy that groups of religious teaching and worship are prohibited in university buildings. Can a state university close it's facilities to a registered student organization who practices religious worship? No. Holding:Once a university has created an open forum by allowing student organizations the use of their facilities for their meetings they cannot then deny a registered group the use of the facilities without violating their first amendment rights.

All women nursing college denies man for admission. Holding:State supported universities may not discriminate among applicants for admission based on gender. It is subject for strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment.

University of Alabams in the 60's - Old dean resigned. New Dean appointed. He questioned if he had was binded to an injunction assigned to the old dean based on admitting African Americans to the university. Holding:When a public officer is party to an action in his official capacity and resigns during its pendency, his successor is automatically substituted as a party.

Handicapped student Arwen Bird sued Lewis and Clark stating that they did not provide reasonable accomodations for her on a study abroad trip to Austrailia. She sued based on discrimination and failure to accomodate under 29 U.S.C. the Rehab Act and ADA even though they couldn't meet all her demands, they came close. Holding:Under 29 U.S.C., a college may provide a disabled student with "meaningful access" to its programs. It may be required to make reasonable, but not fundamental or substantial, modifications to its programs. Reasonableness depends on the circumstances of each case.

Pime was Jewish, working at Loyola a Jesuit university. He was denied tenure even though there were three vacancies held for Jesuits. He sued based on religious discrimination under Title VII of Civil Rights Act, 42 USC. Holding:University can practice selectiveness on employees for hire if it is a bona fide occupational qualification. The court found that Loyola did say that having Jesuit faculty was reasonably necessary to the normal operation of the enterprise.

Several women employees argued male faculty were paid higher. Sued under Equal Employment Opportunity Commission. Evidence showed they had been discriminated against and are underutilized as deans, vice presidents, department heads, etc. Holding:Pursuant to Title 41, Section 1307 of the Revised Codes of Montana, the plantiffs are entitled to equal pay for equal work.

• Pickering wrote a letter to a paper blasting the Board of Education. He was fired from his job as a teacher. Holding:A public school teacher is protected by First and Fourteenth Amendments from termination for writing a letter to the local newspaper unless:
• 1. Teacher breaches confidentiality or undermines the superior - subordinate relationship.
• 2. Causes disruption.
• 3. Makes false statements knowingly or recklessly.

Aumiller was the faculty advisor for the campus homosexual group and made statements in a newspaper about homosexuality. He was denied tenure and fired for his association. Holding:A public university can not deny tenure to a faculty member for their speech or association because it disagrees with it.

Doyle had displayed horrible performance as a teacher. He went on a radio show and complained. The school fired him and told him it was because of what he said on the radio. Holding:A public school or university can't fire someone based on their speech without violating their First Amendment rights.

You must demonstrate a preponderence of evidence to not be rehired if there was no violation of first amendment rights. Are there reasons unrelated to the unconsititutional rights that justify termination?

Connick was transferred in her office. She voiced her discontent and even distributed a internal questionnaire regarding it. She then was fired for it. Holding:Her First and Fourteenth amendment rights were not violated because the questionnaire caused disruption and was not a matter of public concern, which is what the First Amendment protects.

Faculty at Odessa Junior College. Did not get offered a new contract. He said it was because of previous speech and had no opportunity for a hearing. Holding:Without showing a deprivation of liberty or property interest, one does not have to be provided procedural due process protection.

Professor's contract ended and he was not given reason that it was not renewed even though he was not tenured. He sued based on lack of due process. Holding:When there is no lack of liberty or property interest, one does not have to be provided procedural due process. University does not have to provide reasons for not renewing contract when contract date is expired.

Professor alleged he was denied due process being refused tenure and then terminated. Financial reasons were offered as reason why. Holding:In order to receive substantive due process, plantiff must prove the existence of any constitutionally protected interest in achieving tenure.

Scott was African-American professor under contact. He did poorly in certain areas and when up for re-employment, he was denied. He sued based on discrimination. Holding:The university did not discriminate based on race and provided reason why he was not re-employed on criteria other than race.

Some tenured faculty were fired after Bloomfield said there was a lack of financial resources (financial exigency). They cited the university's other spending programs and sued for reinstatement. Holding:If a college cannot prove its financial exigency for demonstrated reason, then they have to reinstate the tenured faculty.

• 1. Policy or practice is very important.
• 2. Limited to university community; i.e. students/faculty/staff
• 3. Restrict to time, place and manner.
• 4. Cannot discriminate content as long as they meet these criteria.

• Speech addressed must be of public concern balanced against the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees. A number of factors in completing this balance of interests:
• 1. Teacher breaches confidentiality or undermines the superior - subordinate relationship.
• 2. Causes disruption.
• 3. Makes false statements knowingly or recklessly.

What you get has to be worthy of what you're getting in return.