Higher Education Outline

8/13/2019 Higher Education Outline

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Higher Education

General Themes

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 ecause !e"re smarter than e#er$one else% ut ecause our

mission is different.

o (&each article' ni#ersities are essentiall$ pulic trusts%* and their trustees are trustees for

the pulic.) (see p. +,)

-ur mission is not necessaril$ to e as efficient as possile learning can e mess$% and disputes and

process can e an important part of learning.

efining and appl$ing the concept of due process

o! to define and appl$ due process in higher education (statutes and precedents usuall$ don"t ha#e

lots of detail0 !e ha#e lots of latitude)

1mportance of due process as an educational tool and !h$ colleges and uni#ersities are not the sameas courts

1mportance of consistenc$ and training of indi#iduals in#ol#ed in processes (facult$% staff% and

students) !here it"s not their full2time jo

&alancing competing rights and interests in higher education

3eed to identif$ #arious constituencies in#ol#ed in an issue in higher education and their interests

Tension et!een !hat $ou ha#e the right to sa$ and !hat $ou ma$ not e allo!ed to sa$

o Tensions are e#er$!here ecause the constituenc$ of a higher education institution is so

#aried'

4tudents225acult$224taff22Administration22Alumni22Trustees/6egents227oliticians'8egislators% go#ernors% etc 22Accrediting odies 22General pulic/taxpa$ers 229edia

4ources of 8a!:onstitutions

5ederal (sa$s nothing aout education)

4tate (man$ estalish s$stems of higher education)

4tatutes (e.g.% discrimination statutes such as Title ;1% Title 1 of 6ehailitation Act%AEA0 5E67A)

Administrati#e rules and regulations (e.g.% epartment of Education on financial aid0 -ffice for :i#il6ights polic$ and enforcement ?note examples of polic$ guidance on racial harassment and race2targetedfinancial aid@)

4tate common la! (judge2made la!) e.g.% contract and agenc$ la!

1nternational la! (e.g.% related to foreign campuses% facult$ and student trips and exchanges% contracts)

1nstitutional rules and regulations (ex.' &$la!s and 47G here at the ni#ersit$ of 9ichigan0 facult$handooks)


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Accrediting agencies

-ther go#erning odies (3:AA% conferences% ;atican)

:ontracts (including collecti#e argaining agreements)

Academic custom (ex.' academic freedom0 AA7 polic$ statements)

:ase 8a! (note distinctions et!een elementar$ and secondar$ and higher education)

7ri#ate #. 7ulic

The 5irst Amendment to the .4. :onstitution applies to indi#idual rights #is22#is pulic institutions

onl$0 5irst Amendment rights do not exist at pri#ate institutions.

E#en at pulic institutions% rights of free speech are limited $ the pulic concern* test

This is a alancing test that !eighs the interests of the institution #. the interests of the speaker.

Rutgers v. Richman

7ri#ate ni#ersit$ !ent 7ulic $ 3B legislature in CD,

Hack v. Yale

5acts' 5our -rthodox Be!ish students are seeking alternati#es to the coed dormitories offered $ Fale.The students% !hose faith pre#ents them from li#ing in the atmosphere of casual intermingling of men and!omen and exposure to immodest dress (and undress) found in the dorms at Fale% seek to either epro#ided $ Fale !ith alternati#e housing or to e permitted to opt out of the dorms and seek pri#atehousing near the school. The$ sue Fale.olding' Fale is pri#ate% thus not suject to :onstitutional restrictions. oard memers is not sufficientto pass theLebron Test

1n the !ake of 8eron% other courts ha#e concluded that the :ourt set forth a three2prong standard'

onl$ if (C) the go#ernment created the corporate entit$ $ special la!% () the go#ernment created theentit$ to further go#ernmental ojecti#es% and (+) the go#ernment retains Hpermanent authorit$ toappoint a majorit$ of the directors of the corporationH !ill the corporation e deemed a go#ernmententit$ for the purpose of the state action requirement.

State v. Schmid

5acts' % !ho !as not a student at 7rinceton ni#ersit$% !as arrested for criminal trespass !hiledistriuting political materials on the ni#ersit$Is campus !ithout ha#ing first recei#ed permission fromni#ersit$ officials% as required $ a ni#ersit$ regulation. e sues 7 claiming C stamendment issuesolding' 3o state action requirements not meet against 7% a pri#ate institution% ho!e#er#er there is roomfor his 4tate :onstitutional claim.

&$ gi#ing no reasonale guidelines* 7 did #iolate "s rights !hen the$ got him for trespassing. :t%

the #ague Jregulations" !ere not a reasonale means of protecting its interests.*Test' 6equired the court to alance indi#idual expression rights !ith propert$ rights in the context of freespeech at a pri#atel$ o!ned uni#ersit$. Schmidarticulated three factors' (C) the nature% purpose andprimar$ use of such pri#ate propert$0 () the extent and nature of the pulicIs in#itation to use thatpropert$0 and (+) the purpose of the expressi#e acti#it$ undertaken on such propert$ in relation to oth thepri#ate and pulic use of the propert$.

Giles v. Britchard


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5acts' a preacher !ho frequents pulic uni#ersit$ campuses and distriutes religious tracts K sermoniLesfrom quadrangles challenges the !ho seeks to restrict his right to sermoniLe.1ssue' (C) !hether an open area on a pulic uni#ersit$"s campus should e considered a pulic forum forspeech purposes0 and () !hether campus officials can exercise unridled discretion* in regulatingspeech on pulic uni#ersit$ propert$% e#en if the speech occurs in a pulic forufm.olding' 3o% the can control open areas* on its grounds. 3o% a must regulate speech in a #ie!point

neutral% fashion.*

IN THE !TTER "# $!%I$ !. ST"LL& & v. NE' Y"R( ST!TE )"LLEGE "# %ETERIN!RY

E$I)INE !T )"RNELL *NI%ERSITY

5acts' makes a 5-18 request against :ornell. The$ refuse% he sues.olding' Me hold onl$ that% gi#en the unique statutor$ scheme applicale here% :ornellIs disciplinar$records are not suject to 5-18 disclosure. -ther% more pulic aspects of the statutor$ colleges ma$ !elle suject to 5-18% ut !e need not and do not reach such issues toda$.

Academic 5reedom

German -riginLehr+reiheit, 5reedom to teach professors should e free to conduct research and pulish findings!ithout fear of reproof from the church or the state (adopted $ AA7 in the CDC, eclaration).Lern+reiheit, A corollar$ right of students to determine the course of their studies for themsel#es.

6ecurring Theme

:ourts are reluctant to intrude on academic freedom% as a consequence the$ often defer to the

ni#ersit$.

CDC, eclaration of 7rinciples on Academic 5reedom and Academic Tenure

ni#ersities should e a ha#en from political !hims a place !here unpopular ideas can e

discussed and considered.o At the time% professors !ere eing fired ecause of their #ie!s on the gold standard (radicals

seen as a threat to the social order).

:omparison of facult$ to judges appointed $ the president (the$ ha#e responsiilities to the pulic%

not just to a political leader).

CD>= 4tatement of 7rinciples on Academic 5reedom and Tenure

Purpose is to protect the common good (not just the interests of indi#idual facult$ or institutions)

The common good depends upon the free search for truth and its free exposition. (oes an$one

disagree !ith that statementN Mho mightN)

Tenure is a means to certain ends:

5reedom of teaching% research% and extramural acti#ities.

A sufficient degree of economic securityto make the profession attracti#e to men and !omen of

ailit$.

Academic Freedom includes rights and corresponding responsibilities:

Teachers are entitled to full freedom in research and in the pulication of results% suject to the

adequate performance of their other academic duties &T research for pecuniar$ return shoulde ased upon an understanding (O) !ith the authorities of the institution.


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Teachers are entitled to freedom in the classroom in discussing their suject% &T the$ should e

careful not to introduce into their teaching contro#ersial matter% !hich has no relation to theirsuject.

Limitations on academic freedom because of religious or other aims of the institution should be

clearly stated in writing at the time of the appointment. (8imitations :lause)

3ote statement P+ (CDQ=)' 9ost church2related institutions no longer need or desire the

departure from the principle of academic freedom implied in the CD>= 4tatement% and !e do notno! endorse such a departure.* -uestion,Is that true toda/

College and uniersity teachers are citi!ens" members of a learned profession" and officers of an

educational institution.

Mhen the$ speak or !rite as citiLens% the$ should e free from institutional censorship or

discipline% &T their special position in the communit$ imposes special oligations. As scholarsand educational officers% the$ should rememer that the pulic ma$ judge their profession andtheir institution $ their utterances.

ence the$ should at all times e accurate% should exercise appropriate restraint% should sho!

respect for the opinions of others% and should make e#er$ effort to indicate that the$ are notspeaking for the institution.

These rights apply to all faculty # whether tenured or not.

CD>= 4tatement of 7rinciples on Academic 5reedom and Tenure

Academic 5reedom includes rights and corresponding responsiilities'

&oth pulic and pri#ate institutions generall$ emrace the concept (note limitations clause*

applicale to religiousl$2affiliated institutions)

Effects of the AA7"s 4tatements

9an$ organiLations ha#e endorsed the 4tatement o#er the $ears

This statement is incorporated into most facult$ handooks% and in man$ facult$ collecti#e

argaining agreements as !ell.

:onstitution and igher Ed The 5irst Amendment to the .4. :onstitution applies to indi#idual rights #is22#is pulic institutions

onl$0 5irst Amendment rights do not exist at pri#ate institutions.

E#en at pulic institutions% rights of free speech are limited $ the pulic concern* test

A alancing test that !eighs the interests of the institution #. the interests of the speaker.

3ote the relationship of E 76-:E44 to academic freedom

7rocedures tend to help cur aritrar$ and capricious decision2making% and to allo! for multiple

#oices and #arious points of #ie! to e considered.

5acult$ !ont e dismissed !ithout going through a fair process in deciding dismissal

5acult$ has the opportunit$ for reuttal

6aan' :onstitutional academic freedom thus ma$ pro#ide professors more protection for professionalspeech and less protection for unprofessional speech than the free speech clause !ould afford the samestatements $ non2academics.

:ase 8a!

S0ee1 v. State o+ NH +,> .4. +>% CD,Q5acts' 7rofessor refuses to ans!er questions aout his famil$% friends% and the sustance of his lectures(e.g.% did he espouse 9arxismN) (9c:arth$ era)


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1ssue' oes go#"t ha#e compelling interest to o#ercome Cstand C>thAmendmentsolding' 4:-T4% Marren !riting% found that the go#ernment"s inquir$ into the suject matter of ani#ersit$ of 3 lecturer"s presentations unquestional$ !as an in#asion ?of the lecturer"s@ lierties inthe areas of academic freedom and political expressionRareas in !hich go#ernment should e extremel$reticent to tread.*

-ne ke$ passage on academic freedom (p. C+C% second paragraph)'

o The essentialit$ of freedom in the communit$ of American uni#ersities is almost self2e#ident.3o one should underestimate the #ital role in a democrac$ that is pla$ed $ those !ho guideand train our $outh. To impose an$ strait jacket upon the intellectual leaders in our collegesand uni#ersities !ould imperil the future of our 3ation. 3o field of education is sothoroughl$ comprehended $ man that ne! disco#eries cannot $et e made. 7articularl$ isthat true in the social sciences% !here fe!% if an$% principles are accepted as asolutes.4cholarship can"t flourish in an atmosphere of suspicion and distrust. Teachers and studentsmust al!a$s remain free to inquire% to stud$% and gain ne! maturit$ and understanding0other!ise our ci#iliLation !ill stagnate and die.

6ole of uni#ersities in sustaining democrac$ note the parallel of this case to

present2da$ deates aout national securit$% the 7atriot Act% and internationalscholars and students.

5rankfurter"s concurrence also recogniLes institutional academic freedom

o 1t is the usiness of a uni#ersit$ to pro#ide that atmosphere !hich is most conduci#e to

speculation% experiment% and creation. 1t is an atmosphere in !hich there pre#ail the fouressential freedoms* o+ a universitR

To determine for itself on academic grounds'

Mho ma$ teach%

Mhat ma$ e taught%

o! it shall e taught% and

Mho ma$ e admitted to stud$

o ?8anguage cited inBakke and other cases.@

3ote ' the nature of the freedoms mentioned hereRall relate to the educational functions% ut do not

estalish unridled autonom$ in making all decisions.

Take A!a$ ' The courts do not !ant to mess !ith the ni and nor should the go#ernment Academic

Freedom

o There is $ust something special about the %niersity

The follo!ing cases are aout emplo$eesRthere are t!o t$pes of emplo$eesRpulic and pri#ate

7ulic/pri#ate emplo$ee doesn"t ha#e Cstamendment !ith a pri#ate emplo$er

o 3o protection from a pri#ate od$ (little protection of !hat $ou said)

ar#ard could expel $ou ased on a polic$ that a pulic couldn"t

6ealm of pri#ate od$ tr$ing to pre#ent pri#ate speech (can do it more easil$ than)pulic od$ tr$ing to pre#ent pri#ate speech

7ulic/pri#ate emplo$ee has Cstamendment rights regarding pulic emplo$er Suestion to ask ' Mho is limiting $our speechN 1f it is a pulic% then $ou can look to C stamendment. 1f

it is pri#ate entit$% then $ou"re out.

:ourts look to see if it is a pulic entit$ and look at factors'

o C. Are $ou speaking on a matter of pulic concern/citiLenN (this is the easiest question to

ans!erRif no% then the$ don"t ha#e to go through the more difficult test elo!)o . &alancing test /! the emplo$ees interest and the emplo$er"s interest

1nterest of emplo$er Cstamendment right of the emplo$ee


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oes it make a difference if the facult$ memer is tenured or notN

o 3o. :onstitution treats oth (non2tenure/tenure the same)

Levin v. Harleston nd :ircuit% CDD5acts' 7hilosoph$ tenured professor (8e#in) that has letters% re#ie!s% and talks aout his #ie!s thatAfrican American people are on a#erage less intelligent than :aucasians. ean o#errides the departmentchair $ responding. p to this point% no complaints from students aout 8e#in"s teachingRno pastcomplaints of racial differentiation. 1n response% the does the follo!ing (and !hich 8e#in lodges hiscomplaint)'

C. 4hado! classa. The shado!* class allo!s to students to a#oid his class.

. Ad hoc :ommitteea. instructed a committee to examine his !riting and talk for contro#ersial content

+. isruptions that !eren"t dealt !ith

a. ne#er helped him mitigate disruptions $ opposed students/groupsArgument' 8e#in' The "s actions ha#e had a chilling affect on his actions (turns do!n talks% etc.)7rocedure' ist. :ourt finds #iolation of free speech and 7% a!ards injuncti#e relief6uling' Affirmed in part% re#ersed in part

The schools purpose in acting this !a$ is infringing upon 8e#in"s academic freedom

Agrees that Ad oc :ommittee had a chilling effect

6easoning'

4chool' 8e#in is still teaching (shado! class is co2existing)R(:ourt affirms lo!er court dec)

o :ourt disagrees' ha#ing classes ased on 8"s opinion and expressions go against academic

freedom.

:an"t make a class solel$* ased on 8"s opinion

)ourt does stress that it doesn2t like to intrude in *2s a++airs but the court 0ill not remain silent 0hen

the 3constitutional values have been in+ringed4

Ad oc :ommittee (:ourt affirms lo!er court dec.)

o :ourt sa$s that direct prohiition of speech* is not necessar$ for the #iolation of Cst

amendment0 it is enough that it created the threat and impact of a chilling effect0 this !as "s!a$ of threatening disciplinar$ action

o The disciplinar$ proceedings are ased on his opinions outside the classroom (#iolation of C st

amendment)

The disruptions (:ourt re#erses lo!er court dec)

o :ourt disagrees !ith lo!er court ruling0 sides !ith /state'

The responded to disruptions regarding 8"s class the same !a$ that it did !ithother disruptions

Equal treatment (e#en though it is equall$ ad)Take A!a$' The court found no e#idence that 8e#in"s expressions of theories outside the classroomharmed the students and the educational process !ithin the classroom. 1t focused on the chilling effect*on speech resulting from :3F"s actions.

'atersCDD+ (et!eenLevinand5e++ries)olding' the go#ernment ma$ fire an emplo$ee if the go#ernment has a reasonable belie+that theemplo$ee ma$ create disruption


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Exemplar$ of the idea that there should e some deference gi#en to emplo$ers !hen e#aluating an

emplo$ees" speech.

&ernardfinds this trouling as it is so #ague and potentiall$ road

5e++ries v. Harleston 6778

5acts' Beffries gi#es speech off2campus% makes derogator$* remarks aout Be!s in his speech. &oard ofTrustees limits his term as epartment :hair.Argument'

Befferies argues that Cstamendment #iolation% seeks puniti#e damages and reinstatement

/4tate' !orried that his remarks !ill create a disruption in the "s operation in the future

o Also% the position is administrati#e thus no A5

ni#ersities" argument is founded on the 'atersdecision.

7rocedure' 4pecial #erdict in fa#or of Beffries. Bur$ sa$s'

C. emoted due to his speech. 4peech didn"t disrupt the school+. efendants acted /c of fear that speech !ould disrupt the school

4up. :rt. decides 'atersafter this case is heard on the lo!er le#el. ases its appeal on 'aters' Go#"t can fire emplo$ee for disrupti#e elief ased on reasonale

elief* of !hat the emplo$ee said% regardless of !hat !as actuall$ said.*5inal olding (after reconsideration in light of 'aters9' :ourt deri#es + factors $ !hich to judge thiscase'

C. had reasonale elief of the disruption% and this is !h$ he !as dropped from :hair of &oard. isruption (potential) greater than the #alue of speech*+. Emplo$er"s actions are ased on speech% not retaliation &alancing test of 'stamendment rights of employee . (ights of employer" Watersadds to the

employer)s rights

Additions to the alread$ existing test (7ickering2:onnick)

o

The more the facult$ memer"s speech touches on matters of pulic concern%* the more thepulic emplo$er has to sho! that the speech is likel$ to e disrupti#e* (C+)

Go#"t in this caseRurden to sho! the likel$ interference* not actual interferenceTake A!a$' Beffries" academic freedom !as not infringed $ reducing his term as department chairecause of his speech (!hich in#ol#ed a matter of pulic concern*).

&ecause the position of chair !as purel$ ministerial%* and pro#ided no greater pulic contact than an

ordinar$ professorship.o e !as still a tenured professor% and the defendants had not sought to silence him% or

other!ise limit his access to the marketplace of ideas* in the classroom.

)ourt made this case N"T about !cademic #reedom

*ro+sk v. Gilmore:;;;

*essage contrast star+ly with that ofLevin5acts' ;A enacted a la! that restricts the ailit$ of state emplo$ees to access sexuall$ explicit material onstate2o!ned or leased computers. 4e#eral ;A pulic college and uni#ersit$ professors challenged thela!% alleging that it interfered !ith their academic freedom to research and teach. The la! allo!edemplo$ees to access such materials !ith permission from a state agenc$ head (!hich could e uni#ersit$deans and department heads)% if deemed necessar$ in connection !ith a ona fide research project orother undertaking. 8a! in ;irginia prohiits pulic emplo$ees from accessing porn% unless the$ getpermission from the ean4tate Arg' Me !ant to control ho! our emplo$ees use state propert$


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5ocusing on the person as a pulic emplo$eeRnot just a citiLen (!ho !ould e co#ered under C st

amendment rights)o 4a$s it promotes efficienc$ of the emplo$ees

o o! !ould $ou sa$ this !ould make the state facult$ emplo$ee more efficientN

3ot a clear line et!een home/!ork life

9a$ actuall$ decrease efficienc$Rspend more time on paper!ork Mhat aout those facult$ that li#e on ni propert$

1dea that it shouldn"t e the go#"t going through and regulating the acti#ities of the facult$ memer0 it

should e the institution (pulic% post2secondar$) that should regulate the actions of the facult$memer

Emplo$ee :oncerns ' (C) #iolation of Cstamendment2 this is la!ful% !h$ are !e from prohiited from

seeing themN

o Suestion' are !e regulating these persons as emplo$ees or as peopleN

6ememer these computers are paid for $ tax pa$ers1ssue'The public concern test is applied by the ,thCircuit: A alancing test that !eighs the interests ofthe institution #. the interests of the speaker.olding' 7rofessors do not ha#e a constitutional right to #ie! sexuall$ explicit material on computers

o!ned or leased $ ;irginiaIs state uni#ersities. 4a$s that go#ernment can control the speech ecause itpa$s for it.

-Any right of academic freedom under the 'stAmendment . . . inheres in the %niersity" not in

indiidual professors.

o There is no academic freedom for facult$ (onl$ the >th:ircuit has taken this position)

o 4a$s academic freedom is merel$ a professional norm0

:onsidered $ AA7 and others to e a radical departure

:ourt recogniLes indi#idual academic freedom in dicta as a matter of polic$% ut distinguishes it from

constitutional protection (rememer different sources of la!% and their hierarch$)0 8uttig echoes thisdistinction on p. =C.

Milkinson concurrence ' e notes that facult$ generall$ speak for themsel#es% not on ehalf of the

institution ut 8uttig disagrees !ith that assertion (p. =C) (6ememerLevinK5e++riescases fromlast !eek).

o Appl$ing the Cstamendment in this setting is trick$ ecause% man$ times the facult$ memer

is not representing the ni#ersit$"s position/issent 0*onaghan1 if the end is to impro#e efficienc$% this polic$ is oth under and o#er inclusi#e(just porn% ut not faceook)

/eference to Educational /ecisions1t is !ell estalished that federal courts ha#e no usiness

acting as surrogate uni#ersit$ deans.*

2ther Constitutional Challenges need for a tight fit et!een the means and the ends !ith this sort

of statute (similar to strict scrutin$* test applied to considerations of race)

o %nderinclusie: 1t prohiits onl$ some speech that allegedl$ distracts emplo$ees from jo2

related duties. (Suestion' 1sn"t the real prolem a management challenge of making sure that

people are doing their jos and getting their !ork done% regardless of the source of possiledistractionsN)

o 2erinclusie 0oerbreadth1: 1t prohiits legitimate research and commentar$ on a #ariet$

of disciplines and social prolems (as !ell as illegitimate !e2surfing to porn sites on !orktime)

3otes'

2ther Types of Challenges' e.g.% agueness

(reasonale person can"t figure out !hat is prohiited).


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The majorit$"s citation to 5rankfurter"s concurrence in

S0ee1and its emrace of institutional autonom$%perhaps in an effort to sho! that the is still a specialplace*

:lass $pothetical' 6asmussen &log 7rotectedN

3uestions to Consider

o! is the !esite laeled (personal #. institutional)% and ho! clear is its role

Mhat do other facult$ do on their !esites/logs

Mhat is the relationship to his area of expertise% if an$N

1mpact on ga$ students in and outside his classes

An$ other e#idence that he treats students differentl$ on this asisN

Mhat if he ser#ed on a uni#ersit$ committee on discrimination issues (or on a judicial oard handling

a case in#ol#ing alleged discrimination against a ga$ student% etc.)

:ouldn"t $ou sa$ that he has Cstamendment /c he"s not sa$ing this in the position of his authorit$N

e"s sa$ing this as a citiLen.4ome Constituencies to Consider:

4tudents -ther 5acult$

Alumni

4tate legislators

General pulic

G8&T communit$

9edia

4ome Policy 5ssues to Consider:

4tatements $ ni#ersit$ leadership (see -"3eil article)

:ompare toLevinand5e++riescases and the school"s response in each case

7ro#ision of !esites to facult$ (as !ell as staff and/or students also)% and an$ restrictions on their

use 4peaking as indi#idual #. spokesperson for ni#ersit$

4hould !e% the % e responding to thisN

)olding' The dismissal of a pulic school teacher for pulic statements regarding issues of pulicimportance% !ithout a sho!ing that his statements !ere kno!ingl$ or recklessl$ false% #iolated his 5irstAmendment right to free speech. 4upreme :ourt of 1llinois re#ersed and remanded.

oesn"t matter if it is done in pri#ate or pulic settingRit"s the topic/discussion itself that !ill e

e#aluated

A pulic emplo$ee does not relinquish 5irst Amendment rights to comment on matters of pulic

interest $ #irtue of go#ernment emplo$ment. Me also recogniLed that the 4tateIs interests as an

emplo$er in regulating the speech of its emplo$ees Hdiffer significantl$ from those it possesses inconnection !ith regulation of the speech of the citiLenr$ in general.H The prolem% !e thought% !asarri#ing Hat a alance et!een the interests of the ?emplo$ee@% as a citiLen% in commenting uponmatters of pulic concern and the interest of the 4tate% as an emplo$er% in promoting the efficienc$ ofthe pulic ser#ices it performs through its emplo$ees.H

OEF' a alance et!een the interests of the ?emplo$ee@% as a citiLen% in commenting upon matters ofpulic concern and the interest of the 4tate% as an emplo$er% in promoting the efficienc$ of the pulicser#ices it performs through its emplo$ees.


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)onnick v. ers(4ame S as


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Garcetti for pulic institutions of higher education and their emplo$ees. 1n general% those patternssuggest that Garcetti is likel$ to ha#e the effect of sustantiall$ limiting the 5irst Amendment protectionafforded to speech $ emplo$ees and perhaps e#en the academic freedom enjo$ed $ facult$ memers.

Tenure and Academic Freedom

&ro!n K Ourland Article Adocate tenure as a means of adancing AF*ain 5ssue' oes tenure promote academic freedomN 0A: 6es1

2erall: Tenure does protect academic freedom (pro#ides the readth and commitment to

exploration)5ntro:

ifferences in the definitions of tenure'

o 8ife time guarantee of position #. guarantee of no remo#al !ithout adequate cause*

1dea of due process in the remo#al of a facult$ ut line dra!ing prolems (!ho hasurden% !hat is cause% !hat is 7N)

Trend ' 9o#ing a!a$ from tenure for greater flexiilit$

:urrent 4tatus' the scarcit$ of jos in higher ed% decreases tenure opportunities ut expected to open

up !ith the retirement of post2a$ oomers" teachers

Academic Tenure U 7rimar$ efense for Academic 5reedom

has the urden of persuasion/production that the 7rof has said something to the extent that !arrants

dismissalo nclear as to the criteria for dismissal. 9a$ e !ritten in the "s regulations0 or general

guidelines pro#ided $ the "Q+ :omm. on Academic Tenureo :omm. on Academic Tenure outlines criteria as'

ishonest$* in teaching/research

4ustantial manifest neglect of dut$% and

7ersonal conduct !hich sustantiall$ impairs the indi#idual"s fulfillment of hisinstitutional responsiilities*

9a$ not e effecti#e defense during strenuous times (i.e. !artime% ex. MM1)

o 4e#eral critics of tenure sa$ academia has gone astra$ from its ideals% and !on"t come ack

/c the people holding academia ack are tenured

Tenure is a defense to thisRkeeps the facult$ that are un!anted*

Tenure is necessary b7c it proides a protection to faculty that they don)t

hae protection prior

Tenure is a gate8+eeper function

:osts of Tenure

VV :ost on institution for agreeing to pro#ide long2term financial support to the facult$ memer

o 6isk that the facult$ memer might e a dead!ood*Rno contriution

o &asic trend that producti#it$ goes do!n after eing granted tenure

o 4tifles the change in di#ersit$ that unis !ant (can"t hire ppl)RAA applies to post2secondar$

institutions

Gains other than A5 that -ffset the :osts of Tenure

5acult$ accept lo! !ages for the securit$ of financial support ut the enefits are'

o :an continue !ith their research uninterrupted% helps create an en#ironment supporti#e of

academic freedom

4ome call tenure a social contract*


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Alternati#es to Tenure (>)

C. 8et the courts protect academic freedom (don"t need tenure)a. :ases in support'

C) )oo?er v. Ross' 7rof sa$s he"s communist. 5ired. :ourt sa$s that under Cstand C>thcan"t do that

) $ube v. State *ni o+ NY' court said that 78 should e heard /c he thought hisfiring !as retaliation

. Counter' :ourts support the academic freedom of the institution and not the indi#idual(Garcetti)

C) Board o+ Regents o+ state )ollegs v. Rothheld that non2tenured facult$ memerdoesn"t require a hearing% has no legal right to kno! !h$ she is eing fired.* ueprocess (C>th) requires that the issue e aout propert$ or liert$Rni canterminate contract of emplo$ment !ithout due process

C. 1ssue ' 1s the tenure title considered propert$ or liert$% thus allo!ing for dueprocessN

a. These cases appl$ the standard in


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:olleges expect their professors to get along (its een traditionall$ understood $ the institution that

facult$ !ill cooperate !ith one another)o )hit0ood v. #easter: a unch of non2tenured !eren"t rene!ed. :ourt oks and finds that

college has a right to expect a teacher to follo! instruction and to !ork cooperati#el$ andharmoniousl$ !ith the head of the dept.*

&reach of :ontract

4upport of collegialit$ ' like an$ other jo% getting along !ith others is to e expected

-pponents of collegialit$ ' not in the O or tenure polic$

o :ourts reject this argument'

*ni. "+ Baltimore v. I1' committee decides against tenure taking into considerationthe profs difficult$ in getting along !ith the others of her dept. 1L sa$s that it"s areach of O /c uni !as supposed to e#aluate her onl$ on teaching% research% andser#ice and collegialit$ not part of the O criteria.

ni"s argument ' collegialit$ is assumed (inherentl$ included in

teaching% research% and ser#ice*) and can ase their consideration ont that

8o!er court fa#ors 1L. ni appeals% Appellate court fa#ors ni#ersit$

sa$ing that collegialit$ can e considered !ithout necessaril$ including it

in the contract0 collegialit$ figures into teaching and ser#ice Bresnick v. anhattanville )ollege' 7rof denied tenure in dance and theater dept.

&ased on teaching excellence% scholarship% and ser#ice.* O doesn"t sa$ an$thingaout collegialit$. & argues that can"t consider ased on factors not listed.

:ourt' disagrees. pholds the ni"s decision. :ooperation !ith others is

part of ser#ice to the college*A co#er for iscriminationN

iscrimination claims aren"t #er$ successful%

:ourts defer to the ni in regards to emplo$ment matters

o Babbar v. Ebadi' & denied tenure0 dept sa$s his research isn"t good% not cooperati#e either. &

argues discrimination

:ourt' decides !ith ni% sa$ing & lacks e#idence to pro#e discrimination

o Stein v. (ent State' 4 sa$s that not rene!ed /c of gender discrimination and her filing !ith

EE-:. ni sa$s that her performance !as ok% didn"t displa$ collegialit$Rher claims !eren"tthought serious $ EE-: or the courts

:ourt finds that college didn"t use collegialit$ in a discriminator$ manner

1s collegialit$ more important in administrati#e positions like department chairN

Faculty Employment and Affirmatie ActionFaculty Concerns

Grat1and Grutter onl$ touch upon AA in regards to student admissions

E;ecutie 2rder ''


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Mhat to do if the prof is teaching something in the class that the ni doesn"t appro#e of (pulic

institution of course )No ni has the authorit$ to control the curriculum content of its emplo$ees

o :ases highlight the discretion courts gi#e to the institution0 supports the idea that academic

freedom is to the uni#ersit$% not the facult$

o ni trumps students in regards to academic freedom on its side (3: case)

c)lure v. Nevada4up. :rt. 3; ==5acts' 9c: enied tenure. nder the emplo$ment O% she gets $earl$ e#aluations% su2tenure re#ie! after+ $rs. Tenure ased on C) instruction* (teaching)0 ) research* (includes expectation of pulication orcomparale producti#it$0 * and +) ser#ice* (participation in the school% facult$% students). 4he !as theonl$ person !ho !as graded on collegialit$ for su2tenure re#ie! (the other tenure candidates !eren"t).

efinition of collegialit$ ' more than academic collaoration !ith colleagues% ut also contriuting to

a positi#e !ork en#ironment.*

Appeals the decision of non2tenure through ni#ersit$"s Appeals 4ucommittee !hich recommends

re#ersal. ni president declines her tenure ut gi#e her a one $ear nonrene!ale contract. 9 sues fordeclarator$ and injuncti#e relief or damages.

7rocedure' trial court grants ni"s judgment on motion on pleadings0 78 appeals thisArgument' 1nitial claim 78 sues for reach of O to grant tenure or promotion0 reach of implied co#enantof good faith and fair dealing0 !rongful termination0 11E0 and negligent infliction of emotional distress

78 sa$s her case differs from Stace/c that !as contract and her case is tort and constitutional

6easoning'

3ot different from Stace(78 sa$s it is)

Stace' discretion to state uni#ersit$ in its hiring/firing practiceRimmunit$

La+orge' 3on2tenured professor doesn"t ha#e a constitutional claim /c her status doesn"t credit her

due processOe$' ni#ersit$ has road discretion in deciding tenure $ determining that collegialit$ can e a factor insuch a decision. (7laintiff had alleged that secret letters !ere solicited from facult$ and staff as part ofher re#ie!% !hich !as not ordinaril$ done.)

&ernard' Me gotta feel for the facult$ memer thinking Mh$ is collegialit$ just no! eing a criterion form$ tenure offerN*

*


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C. 5acult$ usuall$ ha#e the right to decide grading0a. o!e#er% uni#ersities can require a standard !ithin the institution (ha#e its o!n structure)

. 1s the standard placed $ uni#ersit$ encroaching the facult$"s academic freedomNa. The academic freedom rights are not #iolated $ grading standards0 not co#ered through

protection of academic freedom

. 4ee it as a alance of rightsRfacult$"s right to !ork !ithin the rules estalished $ theinstitution+. 7erspecti#es

a. 4tudents' a#e a right to get a gradeNC) 3ot a specific right ut a general expectation) Four rights ma$ get trampled on in the grading procedure. ue process% quid pro

quo

>. Oeep in mind ' Accrediting od$ ma$ come in to require the institution to change its position,. AA7 position ' facult$ memer responsile for grades% not doing an$thing unla!/unfair. The amount of deference gi#en to post2secondar$ institutions proal$ !ill keep an$ litigation from

proceeding in going against the grading s$stem (standard set $ uni)

Q. (%LE' the school can"t force the professor to speak/change the grade% ut the school can do so itself

Z. Academic #. non2academica. 5or non2academic% $ou ha#e a required hearing% more like the court !here $ou run the risk of

den$ing someone their due process (more procedure)

. Academic% $ou can get arguments of academic freedom

Euen% AA7 :ounsel% 9ichigan :hapter 'ho Grades StudentsN6elationship of 1nstitutional and 1ndi#idual Academic 5reedom

2 > essential freedoms of a uni#ersit$R(C) to determine for itself on academic grounds !ho ma$teach% () !hat ma$ e taught% (+) ho! it shall e taught% and (>) !ho ma$ e admitted to stud$*(taken from S0ee1 v. Ne0 Ham?shire% 4 CD,Q% concurring opinion).

2 This is an example of the tension et!een institutional prerogati#es/autonom$ and indi#idual facult$

rights

-li#as Grades4tudents rarel$ !in !hen challenging grades% and rightfull$ so. Mith that said% their challenges are #alidif the professor has failed to pro#ide formal means $ !hich student can ring sustanti#e complaintso#er grades.

AA7 7olicies Applicale to Grading

2 CD>= 4tatement of 7rinciples on Academic 5reedom and Tenure sa$s that grading is part of facult$"sright* in e#aluating a student"s ailities !ithin the classroom and regarding the suject.

2 Grading is' C) it is up to the facult$0 ) the procedure not e prejudicial or capricious0* +) ni#ersit$can"t change or assign a grade !ithout facult$ appro#al

o This supports the idea that administration should not take upon the responsiilit$ of assigninggrades !ithout the input and consideration of the facult$ memer

o Grading is part of the professor"s responsiilit$

2 5acult$ memer is ordinaril$ solel$ responsile% ut mechanisms for appeal should exist to ensurethat there !as no discrimination% use of inappropriate criteria

2 -#erall ' discretion to the facult$ in terms of grading0 limits to administration stepping in on !hat is afacult$ responsiilit$

&radsha! 7rimerA ! Student !++airs !cademic atters


17/63


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such a scenario depends on the facts of the situation. (4ee$ion v. !labama State Board o+EducationD> 5.d C,=% p. C,,)

2 As a pulic institution% the school ma$ ha#e a greater liert$ in regards to student dismissal if thelegislature has delegated it a !ide range of authorit$. (4ee )rook v. Baker% ZC+ 5.d ZZ). 1n)rook% the legislature pro#ided the 6egents of the ni#ersit$ of 9ichigan . . . the authorit$ andpo!er to re#oke :rook"s degree !ithout going to court* (D=).


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!on"t compl$ and the period of time expires. ltimatel$ the$ decide to a!ard him the degree ut ha#e theoriginal #ersion sumitted to the lirar$ not the one !ith the disackno!ledgment. After the degree% herings in the suit to ha#e the section e put in. oesn"t !ant to pro#ide the !riting unless thedisackno!ledgment section is put in. (1 !ould like to offer special#uck You2s to the follo!ingdegenerates for eing an e#er2resent hindrance during m$ academic careerY*)1ssue' oes the uni#ersit$ ha#e the right to reject a master"s thesis ecause of the inclusion of a

disackno!ledgments* section% criticiLing #arious school and go#ernment officialsN6uling0 Fes% The court sides !ith the uni#ersit$.6easoning'

2 isackno!ledgment section didn"t fall !ithin the criteria set out (not !ithin the rules)o There is no Cstamendment prolem /c there are other #enues for him to express his speech

2 Mas the !ithholding of the degree disciplinar$ or academicN Academic decision2 Argument that it is aout professionalismRtraining academics (and this is unprofessional eha#ior)2 1n this case% it is important !hat the jur$ thinks in regards to the instructors/administration2 3ote the court"s reliance onHa1el0ood% (restricting letter in 4 ne!spaper stringent standard) a

precedent from the elementar$ and secondar$ context the court concludes thatHa1el0oodarticulates the standard for re#ie!ing a uni#ersit$"s assessment of a student"s academic !ork. The

application of O2C precedents to higher education% especiall$ in the academic freedom/institutionalautonom$ context% is often highl$ contro#ersial.

o Ha1el0oodga#e extensi#e discretion to make curricular decision% and expressl$ adopted the

anal$sis for higher education cases.

4ee 6einhardt dissent (pp. +C, et seq.) arguing thatHa1el0oodshould not e appliedto more mature students in the postsecondar$ setting.

o Ha!elwood)s school sponsored speech' Expressi#e acti#ities that students% parents% and

memers of the pulic might reasonla$ percei#e to ear the imprimatur of the school"constitute school2sponsored speech% o#er !hich the school ma$ exercise editorial control% solong as its actions are reasonal$ related to legitimate pedagogical concerns.*

5mpramture' co#ers speech that is so closel$ connected to the school that it appearsthe school is someho! sponsoring the speech

Pedagogical' merel$ means that the acti#it$ is related to learning.

4ummari!ed' Mhere learning is the focus% as in the classroom% student speech ma$e e#en more circumscried than in the school ne!spaper or other open forum. 4olong as the teacher limits speech or grades speech in the classroom in the name oflearning and not as pretext for punishing th student for her race% geder% economicclass% religion% or political persuasion% the federal courts should not interfere.

an educator can% consistent !ith the first amendment% require that a student compl$!ith the terms of an academic assignment . . . The +irst amendment does not reCuirean educator to change the assignment to suit the student2s o?ioin or to appro#e the!ork of a student that% in his or her judgment% fails to meet a legitimate academicstandard. 6ather% as articulated $Ha1el0ood% educators do not offend the firstamendemtn $ exercising editorial control o#er the st$le and content of studentspeech in school sponsored expressi#e acti#ities so long as their actions arereasonall$ reltaede to legitimate pedagogical concerns.*

2 This case is THE LA?2 The court is e#en confused aout !hether the uni#ersit$ is reacting academicall$ or disciplinaril$. C

judge sa$s C thing% C the opposite% the last didn"t kno! .

2 &ernard ' to ni' $ou can den$ the admission into the lirar$% gi#e him a degree% let him tr$ to succeedelse!here.


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(eligion and the Academy

1mportant to rememer there is a historic connection et!een religion and higher education (man$American colleges and unis !ere founded $ religious sects).

First Amendment: 7rohiits the establishment of an$ particular religion% ut also protects free

e;ercise.

The 3Limitations4 )lause in the 678; Statement o+ . Association"s treatment of a complaint'a. Guideline C' Association"s staff gets a complaint from a facult$ memer and must

determine !hether the institution is such that adheres to the academic freedom. 5actorsconsidered' stated mission0 its curriculum0 its accreditation0 its eligiilit$ for taxsupport0 its criteria for selection of its go#erning od$% facult$% students% staff% andadministration0 and the !a$s in !hich it presents itself to the pulic in ulletins%catalogues% and other pronouncements.*

C) ecline in#estigation if staff concludes that the institution is not one thatadheres to the academic freedom pro#isions of CD>= 4tatement

. Guideline ' 1f general secretar$ authoriLes an in#estigation% then the ad hoc committeegrades the institution against the Statementconsidering the factors highlighted inGuideline C. 1f it finds that the institution must compl$ to the pro#isions and if theinstitution has made use of limitations clause% then the committee needs to figure out thedegree of specificit$ of the limitation* and if the institution had sufficient proceduralsafeguards* to make sure that the application of its rules !ere adequatel$ cained.*

C) :omments include that the restrictions ha#e to e explicitRcan"t just sa$% theteaching is religious* and that"s that. 1t has to e explicit in that the restrictionars all Jcontradictions that go against the principles of the :hurch."

) Ade@uate e;plicitness' it #aries% depends on the degree. &roadl$ draftedlimitations don"t meet the requirements for Jadequate explicitness."

c. Guideline +' :ommittee A decides !hether to recommend censure ased on the ad hoccommittee"s report

1) :ommittee decides that institution is not suject to the CD>= Statement2s

requirement of academic freedom not recommend censure

2) :ommittee decides that institution is suject to CD>= Statementand adhered to

terms of limitation clause not recommend censure unless it finds that theinstitution failed to pro#ide academic due process or #iolated some otherpro#ision of the Statement or standards espoused $ the Association


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3) :ommittee decides that the institution is suject to Statementand didn"t adhere

to the terms of the limitation clauserecommend censure.

,. 4ource of authorit$ ' AA7 has censure po!er% ut no formal legal authorit$.

!cademic #reedom and the %atican2s E )orde Ecclesiae (9aGuire)&ackground

C. CDD=R7ope Bohn 7aul 11 issues apostolic constitutionregarding :atholic higher education. Allprofessors (part2time and full2time) at colleges and uni#ersities related to 6oman :atholic :hurch arerequired to get a mandate from the area"s ishop (deadline for mandate' /C/==).

a. 7urpose of mandate' make sure that the teachings are in line !ith the :hurch. 1dea that not allfreedom of inquir$ is la!ful.* Mant to make sure no teaching is professed as :atholic thatgoes against the church"s teachings (teachings of the religionRishop% pope).

. Appeal of the mandate"s denial !ill e handled through the church and not academic dueprocess.

Author"s criticism of the apostolic constitution (1 read aout a possile chill here% as !ell)

C. The hierarch$ s$stem (of ishops gi#ing mandates to professors) goes against the :atholic teachingson the legitimate role of the theological magisteriumand on the definition of a theologian.*

(magisteriumU teaching office% ut also translated as !hat ishops/pope teach)' The chill.a. The t!o different definitions of the !ordRone (the theologian) has in the past een seen asallo!ed to criticiLe the other (pastors).

. 6eference to Aquinas (historical figure) as ha#ing di#ided the teaching offices* of theteacher from that of the pastor.

c. 1dea that the church encompasses the present as !ell as the past. The pastor"s role is theteaching of the past and shouldn"t limit the theologian teacher !ho !orks !ith the present%thinking of the church as it exists in present societ$.

. 7uts professional theologians under the authorit$ of those outside academia (those judgingRishopsRdon"t ha#e the expertise to judge)' lie !udges.

+. ;iolation of ci#il status of uni#ersities. Although religious institutions% the higher educationinstitution is chartered under 4 la! that promotes academic freedom.

a. An American uni#ersit$ is first an institution of the state that is committed to academicfreedom. The$ an emit ut not contradict the sustanti#e identit$ of the institution.*

. The order for the mandate (Ex :orde) also fails as a proper legislation /c it !ill einterpreted differentl$ depending on the ishop.

>. &ernard ' There is a least a tenale position supporting the idea that there ma$ e more freedom in asectarian school gi#en the$ !ill listen to religious arguments.

oo#erBlocking the -uran

C. 5ederal judge denied student"s request for temporar$ restraining order on the requirement to read anddiscuss a ook aout the Ooran.

. 7laintiff"s are a ;A2ased :hristian group that argued #iolation of church2state separation0 also liststhree anon$mous students !ho sa$ that the ook !as selected to create a fa#orale #ie! of 1slam andopting out of the reading !ould make them e ostraciLed.

+. Assignment !as for 3:"s incoming freshmen to read the ook o#er the summer and prepare a 2hrdiscussion session and do a one2page assignment ased on the reading. 4tudents !ere gi#en theoption to opt out of the discussion $ !riting a one2age essa$ telling !h$ the$ ojected to it.

MolterstorffIvor To0ere argues that academic freedom al!a$s has strings attached% just as free speech is not an asolute right.


22/63

There is more freedom to discuss religion in the pri#ate sector than in the pulic sector of highereducation. 1n the pri#ate sector% one can explore and espouse religiousl$ grounded lines of thought thatone !ould not e allo!ed to explore or espouse in the pulic sector.*

Bob 5ones v. *S

5acts' A ni#ersit$ is stripped of its ,=C(c)(+)% !hich makes it tax exempt ecause it has een accused of

discriminating against students ased on their race. The ni sues the court for mone$ o!ed $ thego#ernment.

C. Tax2exemption is a pri#ilege and is intended to encourage certain t$pes of acti#ities for the pulicgood.

. 4tandard for ,=C(c)(+) exemption institution must ser#e the public interest(as defined $ certainroad categories such as education)% and its purpose must not e so at odds !ith the commoncommunit$ conscience as to undermine an$ pulic enefit that might other!ise e conferred.*

+. 3ote ho! the decision reflects societal #alues and consensus (:ourt notes that there can no longer ean$ dout that racial discrimination in education #iolates deepl$ and !idel$ accepted #ie!s ofelementar$ justice.*) (6ehnquist dissent' :ongress% not the 164% should ha#e made the polic$change.)

Arguments' The ni sa$s the$ are not discriminating ased on 6ace% rather just religion. The religion%ho!e#er% discourages interracial relationships and is grounds for inadmissiilit$ and expulsion.olding' 3onprofit pri#ate schools that prescrie and enforce raciall$ discriminator$ admissionsstandards on the asis of religious doctrine do not qualif$ as tax2exempt organiLations under the 1nternal6e#enue :ode% nor are contriutions to such schools deductile as charitale contriutions.Educational institutions that practice racial discrimination cannot e encouraged $ ha#ing all taxpa$ersshare in their support $ !a$ of special tax status.&alancing test' The go#ernment"s o#erriding interest in eradicating racial discrimination sustantiall$out!eighs !hate#er urden denial of tax enefits places on the schools" exercise of their religious eliefs.

C. &ernard ' An instance of the go#ernment% thru a urden% choosing !ho shall e educated% !hen thereis a narro!l$ tailored strong go#ernmental interest

. :ompare to opt2out* discussion in South0orth% !here some students ojected to certain student

organiLations that recei#ed student acti#it$ fee funds. 'h is this di++erent/

!son@#lnn v. 5ohnson5acts' 4tate uni#ersit$ theater student sued uni#ersit$% claiming that requirement that she speak all lines!ritten for her character during acting acti#ities #iolated her constitutional rights (free exercise of religionand free speech). 4he !as a 9ormon student in an actor training program. Mhen asked at the outsetaout things that made her uncomfortale% she ga#e some examples of language she did not !ant to use.Mithout appro#al or notice to her instructor% she remo#ed some phrases she found ojectionale. ergrade !as lo!ered on at least one assignment.

Argument' 4chool claims that requiring students to perform offensi#e scripts ad#ances the school"spedagogical interest in teaching acting in at least + !a$s' (C)1t teaches students ho! to step outside theiro!n #alues and character $ forcing them to assume a #er$ foreign character and to recite offensi#e

dialogue () 1t teaches students to preser#e the integrit$ of the author"s !ork (+) 1t measures true actingskills to e ale con#incingl$ to portra$ an offensi#e part.

3otes

C. 5aciall$ neutral rules that incidentall$ urden the free exercise of religion are usuall$ upheld.. :onsistenc$ question again ' 7laintiff asserted that the uni#ersit$ allo!ed a Be!ish student to miss

classes and practices on hol$ da$s !ithout penalt$.

+. Suestion' 1s art different than other contextsN


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a. (Mhere the art con#e$s the artist"s expression% not that of the indi#idual performer.)>. :ourt talks aout the need to defer to educators (citing E!ing% oro!itL). :omparison is made to

la! school students eing forced to articulate other points of #ie!. &ut compare the language here tothe 8ouisiana la! clinic case last !eek (and its lack of deference)'

,. The judicial deference to educators in their curriculum decisions is no less applicale in a clinicalsettingRas in this case !ith the AT7"s practical acting curriculum0 e#aluation in a practical setting JisY an Jacademic" judgment ecause it in#ol#es oser#ation of Y skill and techniques in actualconditions of practice% rather than assigning a grade to Y !ritten ans!ers on an essa$ question.* (p.>DC)

a. This should e compared !ithSoutheastern Co""unity College v# Davis.. 3ote comparison to disailit$ cases (!here schools can define essential* elements of programs)R

district court here refused to require that uni#ersit$ students e allo!ed exemptions for religiousreasons from certain degree requirements that offend their eliefs (!hereas other students could nota#ail themsel#es of similar exemptions).

olding'

C. 4he is not eing asked to espouse an ideolog$ that is not her o!n0 she is merel$ eing asked to

engage in exercises that foster the understanding and competenc$ necessar$ to get this degree.. :ourt finds this to e school2sponsored speech ecause it"s part of the curriculum.a. 4tudents cannot ha#e #eto po!er o#er the curriculum.

+. :ourt applies the aLel!ood frame!ork% ut notes the difference et!een O2C and postsecondar$education ased on the age% maturit$% and sophistication le#el of the studentsY argual$ the needfor academic discipline and editorial rigor increases as a stduent"s learning progresses*

a. Ha!elwood)s school sponsored speech' Expressi#e acti#ities that students% parents% andmemers of the pulic might reasonla$ percei#e to ear the imprimatur of the school"constitute school2sponsored speech% o#er !hich the school ma$ exercise editorial control% solong as its actions are reasonal$ related to legitimate pedagogical concerns.*

i. 5mpramture' co#ers speech that is so closel$ connected to the school that it appearsthe school is someho! sponsoring the speech

ii. Pedagogical' merel$ means that the acti#it$ is related to learning.iii. 4ummari!ed' Mhere learning is the focus% as in the classroom% student speech ma$

e e#en more circumscried than in the school ne!spaper or other open forum. 4olong as the teacher limits speech or grades speech in the classroom in the name oflearning and not as pretext for punishing th student for her race% geder% economicclass% religion% or political persuasion% the federal courts should not interfere.

. *aturity' although !e are appl$ing haLel!ood to a uni#ersit$ context% !e are notunmindful of the differences in maturit$ t!n uni#ersit$ and high school students. Age%maturit$% and sophistication le#el of the studetns !ill e factored in determine !hether therestriction is reasonal$ related to legitimate pedagocial concerns.*

>. &ut' :ourt said there"s a genuine issue of fact regarding !hether the school"s real reason !aspedagogical% or religious discrimination #. 9ormons.

a. efendants must sho! that the script requirement !as a neutral rule of general applicailit$%or estalish that the requirement !as narro!l$ tailored to ad#ance a compelling interest.(6ememer exception made for Be!ish students.)

,. As long as a rule is not o#ert aout offending a specific religions% then it is ok.. 4ince classroom is not pulic% their guidelines must onl$ e reasonale. o!e#er% the court thinks

there is a pretext0 the school !as making these comments to chip a!a$ at the "s core eliefs and#alues. tah 4tate #. 9ormons. Teachers had made man$ comments that suggested pretext.

a. 4ee ' http'//cases.justia.com/us2court2of2appeals/5+/+,/CQQ/,+DZ=D/
http://cases.justia.com/us-court-of-appeals/F3/356/1277/539809/http://cases.justia.com/us-court-of-appeals/F3/356/1277/539809/


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i. 7aragraph CD for alancing testQ. 6ule (see again in E!ing) schools !ill get lots of lee!a$% so long as it is reasonale !ithin the

accepted academic norms% the court !ill not inter#ene

a. 7retextRthe institution gets to decide. &ut in the end% the$ sa$ this test doesn"t matter.. exceptions

C) 4mith 6uleC. 3eutral rules of general applicailit$ are suject to rational asis test.a. 1f the pretext is there% then the urden the state must pass is strict

scrutin$ asicall$% if la! is applied aritraril$.

i. Court finds issue of material fact' the$ think that the$ !ereappl$ing the la! aritraril$% as against 9ormons.

) $rid rights exception*C. 4tandard rises' There !ill e heightened scrutin$ to defend a case !here a

#iolation free exercise is eing alleged at the same time as anotherconstitutional question strict scrutin$.

a. $rid rights at least requires a colorale sho!ing* ofinfringement of a companion constitutional right

i. :olorale' the plaintiff must sho! a fair proailit$ orlikelihood% ut not a certitude% of success on the merits of thecompanion #iolation. The inquir$ is #er$ fact dri#en andmust e used to examine h$rid rights on a case2$2caseasis.

+) 1ndi#idualiLed exemption exceptionC. Mhere a state"s faciall$ neutral rule contains a s$stem of indi#idualiLed

exemptions% a state ma not re+useto extent that s$stem to cases ofJreligious hardship" $ithout a co"pelling reason. The s$stem need not eformal% ut rather the plaintiff ma$ sho! a pattern of ad hoc discretionar$decisions amounting to a s$stem.*

a. 8imitation' to s$stems that are designed to make case2$2casedeterminations does not appl$ to statutes that contain expressexceptions for ojecti#el$ defined categories of persons.

i. Court finds issue of material fact' permit Be! studtns tonot attend impro#e acti#it$ on Fom Oippur !/out ad#erseconsequence.

+. &ernard ' 197-6TA3T :A4Ea. 1f no staff interjections like change $our #alues/eliefs* this case is a slam2dunk for the .

Linnemeir v. Board o+ Trustees o+


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c. 3on2pulic forumC) 4tate institutionRits theater is a non2pulic forumRit"s not open to the pulic. The

entit$ !ho has authorit$ is the state.

2) The state has more control as it mo#es do!n from pulic forum limited pulic

forumnon2pulic forum*

d. -ne of the opinions sa$s that e#en if it is a limited forum%olding' 1t doesn"t matter !hat the forum is% this is the school"s pur#ie! to let the student speak in this!a$. Me ma$ think it is in poor taste% ut it is the speech of the academ$.

e. 8ittle la!% lots of commentar$% likeBro0n v. Board o+ Education,. The contention that the 5irst Amendment forids a state uni#ersit$ to pro#ide a #enue for the

expression of #ie! antagonistic to con#entional :hristian eliefs is asurd.* (Mhat aout teaching!orks $ thinkers such as ;oltaire% ume% oes% ar!in% 9arx% 5reud% 4artre% Bohn e!e$% etc.N)

. The majorit$ concluded Hthe school authorities and the teachers% not the courts% decide !hetherclassroom instruction shall include !ork $ lasphemers.H

a. ?issent"s response' This comparison is misleading. This pla$ is an outright attack on:hristianit$% not just a !ork that calls certain tenets into question.@

Q. There !as no e#idence that the uni#ersit$ is hostile to :hristianit$.

issent' This ruling opens the floodgates for anti2religious speech of all sorts on campus. The forum !asnot pulic%* and the speech could easil$ e attriuted to the ni#ersit$.

Ed0ards v. )al *


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W3ote ho! the ni#ersit$ represents all possile interests under cop$right la!W

4ources of 8a!Constitution: Article 1% 4ection Z% clause Z' The :ongress shall ha#e 7o!er . . . To promote the 7rogressof 4cience and the useful Arts% $ securing for limited times to Authors and 1n#entors the exclusi#e rightto their respecti#e Mritings and isco#eries.

Federal statutes(on cop$right% patent% trademark) note the related federal ureaucracies such as the.4. :op$right -ffice and .4. 7atent and Trademark -ffice.

:lassnotes4lideshow: Copyright Laws

C. 7urpose of cop$right la! (4) is to promote pulic learninga. Art. 1% 4ect. Z' To promote the progress of science and useful artsY*

C) This isn"t in :ommerce clause% !hich it could ha#e een stuck. 4tresses theimportance gi#en to it.

. 9ain purpose of cop$right la! is to enrich the general pulic through access to creati#e!orks*#ogert v. #antas(CDD>)

c. Aout encouraging others to explore $ the exploration of others so far. :op$right requirements

a. -riginal. Mork of authorshipc. 5ixed in a tangile medium of expression

+. :op$right holdera. -nce $ou ha#e it% $ou don"t ha#e to do an$thing. 3otice and requirement is not required.

Gets cop$right protection automaticall$

C) &enefits to registration' prior to infringment get statutor$ damages and attorne$"sfees

b. ppl do the !orkjoint cop$right holders (e#en if not equal share of !ork)

c. efault rule' creator is the cop$right holderC) Exception ' Mork for hire* is the !hen the person creates something under the

emplo$ment of another. Four !orks go to $our emplo$er if $our !ork is in thescope of the emplo$ment

) Mhen facult$ make !orks during their emplo$ment% it !ill e considered ascop$right of the emplo$er (facult$ U emplo$ees)

C. 4ometimes% uni#ersities gi#e ack% ha#e exceptions for facult$d. 1ndependent contractorsRpa$ mone$ to get the rights of the product produced (transfer of the

entitlement)0 e#en if $ou ask for the product to e done% the$ elong to the contractorRtransaction needs to occur !here the cop$right is transferred.

>. Mho is the holderN

a. 3o one o!ns facts and ideas% onl$ forms of expression. istinguish the ideas/facts/inspirations that underlie a cop$rightale !ork from the !ork ofauthorship

c. :opies of a !ork% including the original (that has a cop$right% too)

d. The underl$ing cop$right in a !ork exists e#en if $ou destro$ the !ork

,. 7ermissions and Transfersa. Exclusi#e rights are independent of each other and di#isile indi#iduall$. 8icense ' permission to exercise one or more of the exclusi#e rights in specified !a$s


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c. Transfer ' assignment of control o#er one or more of the exclusi#e rightsC) Transfers and exclusi#e licenses must e in !riting and signed $ the rights

. uration of cop$righta. Time of the authors life% plus some. Enters the pulic domain after a time then an$one can make those uses% e#er$one has the

ailit$ to use itC) \ Js rights no longer attach to the !ork0 once in the pulic domain% it sta$s there.) Those that aren"t cop$rightale from the eginning are in the pulic domain from

the start

Q. :op$right #. 7lagarisma. :op$right protects the expression of a !ork% not the ackno!ledgment of the !ork. 7lagarism is different it appropriates the !ork of another !ithout recognition of the former

!ork

Z. amagesa. p to C,=%=== in ci#il damages X attorne$ fees for each infringement0 ma$ ha#e criminal

fines attached

D. 3ot infringement ifY

a. Fou are the cop$right holder. Express permissionc. 1mplied licensed. 1n the pulic domaine. Fair use

C=. \ !as ne#er aout gi#ing cop$right holder the complete o!nership of his !ork

Fair %se Factors(4ect. C=Q)

C. The fair use of a cop$righted !ork% including such use $ reproduction in copies or phonorecords Yfor purposes such as criticism% comment% ne!s reporting% teaching (including multiple copies forclassroom use)% scholarship% or research% is not an infringement of cop$right. 1n determining !hether

the use made of a !ork in an$ particular case is a fair use the factors to e considered shall include22

. 5our factors considered $ the court'a. 7urpose and character of the use

C) 7ersonal/education/transformati#e #. commercial

1. The more it is for not for profit fair use0 more commercialless likel$ toe fair use

. Transformati#e uses uses of the !ork that it !ould not ha#e een put toother!ise (i.e. the author didn"t make this for the particular use it is eingused)

. 3ature of the !ork eing usedC) 5actual #. creati#e

1. 9ore creati#e less likel$ to e fair use2. 9ore factualmore likel$ to e fair use

c. Amount and sustantialit$ of the portion used in relation to the !holeC) 4mall #. large% oth quantitati#el$ and qualititati#el$

1. Excessi#e use less likel$ to e fair use

2. 9inimum use more likel$ to e fair use

d. Effect on the market for the originalC) The t$pe of use (not indi#idual use)


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C. ndermining the potential market for the original cop$right holder. 1f not affecting a protected market% then it"s ok. 1f it is a fair use% then not

harming the legit market of the rights holder.

Gunnels and !lger-!nership% Exploitation and 7rotection of 1nt"l 7ropert$

1ntroduction

1. + t$pes of propert$ (real% personal% intellectual)0 higher ed institutions ha#e pros !ith intellectual!hich differs from the others since it is intangile (ideas% expressions)

11. 1ntellectual propert$ protections' cop$rights% patents% trademarks% trade secrets.*a. 7atents and cop$rights are under federal la!% Art. 1 4ect. Z :ongressional Authorit$0. Trademarks under fed and state la!0c. Trade secrets usuall$ state

7atent 7rinciples to 6ememer

111. 1n#entions that are non2o#ious% no#el% useful% and full$ disclosed through the .4. 7atent andTrademark -ffice.

1;. 7atents protectY.

a. Gi#es a monopol$ to the holder (in#entor). 7rotects the procedures% s$stems% methods of operation% concepts% principles% ideas or

disco#eries*

c. igher ed' usuall$ dealing !ith drug manufacturing% research methods% medical instruments%computer soft!areRstuff that has commercial #alue

d. To get a patent% the item (!hate#er) must meet criteria of no#elt$% originalit$% andusefulness*

i. 5iled in 4 !ithin C $r of in#ention or else considered !ithin pulic"s domain. C $rgrace period for foreign countries.

ii. 4 gi#e patent protection ot the original creator #ersus foreign countries gi#eprotection to the person !ho first files the paper!ork.

iii. 1n 4% proisional patent application!hich is like a placeholder* until a morecomplete application can e turned in

e. 7atent rightsi. Exclusi#e right to manufacture% sale% or use the in#ention* o#er the course of a set

term of $ears (generic = $rs) unless something specified

f. 1nfringementi. 7atent includes a list of clams that tell !hat the in#ention does% and if another part$ is

doing these acti#ities !ithout a license% it !ill e held liale for damages

ii. /octrine of e@uialents' theor$ that one infringes upon another"s patent if hede#elops something that is similar to the original patented item

iii. amages' injunction% ro$alties for use plus interest% la!$er feesC. -nl$ for infringement that occurs !ithin $rs of the complaint filing

. -nl$ if the patentee had marked the in#ention* such that the pulic kne! it!as patented0 or if the infringing part$ !as told and still continued

:op$right 7rinciples to 6ememer

;. :op$right protectsY.*original !ork of expressions of an idea% not the idea itself* Author"s !orkas to e fixed in a tangile medium of expression* and e under one of the follo!ing categories.6equires a minimal degree of creati#it$0 no qualit$ requirement

a. 8iterar$ !orks. 9usical !orks (inclusi#e of l$rics)


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c. 7la$s (and their music)d. ance/choreograph$e. ;isual arts/graphicsf. 9ulti2media !orks (mo#ies% etc.)g. Audio recordings (:s% etc.)

h. Architectural !orks (like architectural plans)i. To note% things in the pulic domain aren"t co#ered. 1t isn"t the idea itself ut themode of expressing the idea. 4o classic music is in the pulic domain ut a particularand"s co#er of that classical music !ould e protected

;1. :op$right rightsY.a. The creator (author) has a right to his !ork as soon as the !ork is created0 suing for

infringement requires registration of the !ork !ith 4 :op$right -ffice prior to initiating thela!suit

. 7rotection from the moment of the !orks creation to the death X Q= $rs of the author. 1f doneunder contract% the protection is D, $rs.

c. Emodiment is sufficientl$ permanent to permit it to e percei#ed for a period of more thantransitor$ duration (e.g.% e2mails are protected)

d. 1deas themsel#es are not protected (unrecorded oral expression isn"t protected)e. 5acts are not protected% ut compilations ma$ ef. .4. go#ernment documents are not protected

Trademark 7rinciples to 6ememer

;11. Mords% names% s$mols% de#ices% or an$ comination thereof% used to distinguish goods fromthose manufactured $ others% and to indicate their source. (4er#ice marks are the same astrademarks except that the$ identif$ and distinguish ser#ices rather than products.)

;111. 8a! deals !ith the trademark eing used in the same categor$ of ser#ice% goods and the otherperson tr$ing to pass of his product/ser#ice as the other"s

1


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1. 4tudents o!n their o!n !orks% unless the$ create them in the course of emplo$ment at the ni#ersit$under a !ork for hire* arrangement (see ne! cop$right polic$ at !!!.cop$right.umich.edu)

. se of unusual ni#ersit$ resources can trigger o!nership interest $ the ni#ersit$ (see% e.g.% 29polic$ at p. D+)

a. Suestion' Mhat constitutes unusual uni#ersit$ resources*N+. se of the ni#ersit$"s name or marks (other than for purposes of pro#iding an indi#idual"s title) is

itself use of a significant ni#ersit$ resource and requires institutional appro#al.

>. Morks created at or for the ni#ersit$ should not e used in !a$s that create conflicts of interest orcommitment for staff memers. (see 29 polic$ at p. D>)

Exclusi#e 6ights of :op$right -!ners (a undle of rights*)

C. 6eproduction of the !ork in !hole or in part. 7reparation of deri#ati#e !orks (e.g.% translations% musical arrangements% dramatiLations% sound

recordings% and second editions)

+. istriution of copies of the !ork to the pulic $ sale% gift% rental% loan% or other transfer (!ithexception of first sale doctrine*)

>. 7ulic performance of the !ork

,. 7ulic displa$ of the !ork. These rights can e di#ided up among #arious parties using contracts (in oth exclusi#e and non2

exclusi#e !a$s to share or transfer rights)

Faculty as -wor+ for hire

C. 4oft!are is not returned to facult$ (unis like to retain patented !ork). 7olic$ doesn"t !ant to transfer scholarl$ !ork ack after ha#ing put resource into it+. Morks that are linked to grants (not the kno!ledge% ook% article% etc.) things that are required $ the

grant

a. suall$% unis transfer the !ork ack to the facult$. S' Mhat if the G41 (student !orker) helps create the product. Mho holds the rightsN

Suestion' :an the market* e changed as modern technolog$ allo!s for licensing of the smallestpossile segments of !orksN

C. 4ome suggestions' (C) Allo! greater use of !orks $ academic authors () Mhat aout tuitionre#enues uni#ersities getN (+) 4pontaneit$ of use in the classroom

Patent Law Presentation

7urpose of 7atent la!

C. Ad#ance the state of technolog$ a#ailale to the pulic*. An$ aspect of one oject is up for patent

+. 3o patent for astract idea% la! of nature*a. :ontro#ers$ regarding patent on soft!are% 3A (!hen can $ou get these patented)7T- (7atent Trade -ffice) 4tandards

C. Mhat the$ look for. 7atent is a negati#e right* gi#es the right to E


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>. C., + $rs for the first rejection0 longer to get all the ends tied,. 7ros' 7T- has a lot of acklog. isputes on the examiners competenc$:onsistent 8egal 6egimes

C. ntil the CDZ=s% there !as difference in the appellate !ork regarding patent la!0 in earl$ Z=s% $ouha#e a centraliLed s$stem% a consistent od$ of la!. a#e judges !ho are familiar !ith the area

Mho o!ns 7atent

C. Mork for hire doesn"t exist (difference from cop$right la!)a. o! do $ou transfer the rights from the in#entor to the usiness (emplo$er)N

7atents

C. 9ust e deemed ne!*a. :an"t ha#e it as pulicl$ disclosed. 4 has one $ear grace period from $our first pulic disclosure*c. 3o C $ear grace period in Europe0 if an$ disclosure in Europe kills $our ne!ness. 5rom the

time someone in#ents something (in 4 and !ants to go to Europe% too) $ou should start theapplication process A4A7

C) &/c in institution (ducation)% the institution"s counsel can start the applicationprocess earl$ efore disclosure.

) 7ro' 4tudents don"t ha#e the same luxur$ (the mone$). 7rocess'

a. Ask if there has een an$ pulic disclosure (Ans!er must e 3o). Application filed

7ulic isclosure

C. Thought that pulic disclosure !as pulishing% etc. The(lo?+ensteincase sho!ed that this !as notthe limitation.

. A#oid disclosure of in#ention don"t do full disclosure of $our in#entiona. 7rolem in classes' 4tudents in mechanical engineering (example) ha#e to present their ideas.

&ut as soon as the$ do the class presentation% the$ kill their 17 (intellectual propert$ rights).

C) 4olution' a#e language in the professor"s s$llaus that sa$s discussions are for

classroom purposes0 sumission is ethind uni#ersit$ gate!a$ !here it is notpulic. 4ho! the expectation of confidentialit$. This lea#es a paper trial just in caseprolem occurs do!n the roadRimplied/expectation of confidentialit$

+. 7rolems to consider' export la!s regarding foreign student and American studentinteractions/discussion

6esearch or Experimental se

C. 7re#ious idea that $ou can use patents for research purposes this 14 3-T E8 7 underadea. ade v. $uke *niversit' 9ade$ held t!o patents on laser% lea#es uke !hich continues to

use the products for research. 9 sues for infringement and claims experimental researchexception.

C) 4hrinks the research exception to the point !here it arel$ exists. efenses for pulic uni#ersities

a. CCthamendment' so#ereign immunit$ (can"t sue states for mone$ in federal courts)b. Biomedical


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a. must reser#e research rights and go# rights. 4hare ro$alties !ith in#entorsc. 6equire that licensees diligentl$ seek to sue the technolog$ and make the products in 4

5acult$ and 7atent

C. 5acult$ get a re#enue share


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offered to license the patent rights to 6oche (for a sustantial ro$alt$). After negotiations stalled% 4tanfordsued 6oche for patent infringement. 6oche claims that it has o!nership rights or 2 at least 2 shop rights tothe patents ased on its acquisition of :etusIs 7:6 assets.olding' 4tanford didn"t ha#e o!nership rights% so it has no standing to ring this case. The :ompan$%6oche% also automaticall$ held legal title in the patent application at the moment it !as filed. (Thein#entor did not sign an assignment to 4tanford until after filing).

8esson' maintaining patent o!nership R and right to sue R in a single entit$% is critical to preser#estanding in a la!suit. 4tanford !ould ha#e !on the case R at least the o!nership issue R if it had!ritten its emplo$ee agreement to transfer rights automaticall$ upon creation of an in#ention.

(ace and 4e; Harassment

6ele#ant 4tatues

C. Title ;1 2 This title declares it to e the polic$ of the nited 4tates that discrimination on the groundof race% color% or national origin shall not occur in connection !ith programs and acti#ities recei#ing5ederal financial assistance and authoriLes and directs the appropriate 5ederal departments andagencies to take action to carr$ out this polic$.

a. 7re#ented discrimination $ go#ernment agencies that recei#e federal funding. 1f an agenc$is found in #iolation of Title ;1% that agenc$ can lose its federal funding.

. 3ote the asence of sexual orientation as a co#ered status2. Title ;11 prohiits discrimination $ co#ered emplo$ers on the asis of race% color% religion% sex or

national origin (see > .4.:. ===e2?+@). Title ;11 also prohiits discrimination against anindi#idual ecause of his or her association !ith another indi#idual of a particular race% color%religion% sex% or national origin. An emplo$er cannot discriminate against a person ecause of hisinterracial association !ith another% such as $ an interracial marriage

a. 1n the late CDQ=s courts egan holding that sexual harassmentis also prohiited under theAct.itle ;111

+. Title 1< 2 The la! states' H3o person in the nited 4tates shall% on the asis of sex% e excluded fromparticipation in% e denied the enefits of% or e sujected to discrimination under an$ educationprogram or acti#it$ recei#ing 5ederal financial assistance...H

Title ;1 4tandards' (:hief :ase)

C. A raciall$ hostile en#ironment% for !hich a recipient ma$ e suject to Title ;1 liailit$ exists if'a. 6acial harassment is sufficientl$ se#er% per#asi#e or persistent so as to interfere !ith or limit

the ailit$ of an indi#idual to participate in or enefit from the education ser#ices% acti#itiesor pri#ileges pro#ided $ a recipient

. The recipient had actual or constructi#e notice of the raciall$ hostile en#ironment0 andc. The recipient failed to respond adequatel$ to redress the raciall$ hostile en#ironment

i. 3ote that offensi#eness* alone is not enough

Oe$ question for academic freedom and racial or sexual harassment' Mhat is the missionof an institutionof higher educationN o! does that mission differ from other contextsN

C. Exposure to the mar+etplace of ideas2 e#en unpopular or contro#ersial ideas that some studentsmight find offensi#e% repugnant% or that other!ise challenge their assumptions and eliefs

a. &ut the en#ironment must e conduci#e to learning.

F5(4T A*E/*ET2 4ome core principles'

5irst Amendment protects expression in a #ariet$ of forms '

;eral and !ritten communication

Graphic representations
http://en.wikipedia.org/wiki/Title_42_of_the_United_States_Codehttp://www.law.cornell.edu/uscode/42/2000e-2.htmlhttp://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964http://en.wikipedia.org/wiki/Sexual_harassmenthttp://en.wikipedia.org/wiki/Title_42_of_the_United_States_Codehttp://www.law.cornell.edu/uscode/42/2000e-2.htmlhttp://en.wikipedia.org/wiki/Civil_Rights_Act_of_1964http://en.wikipedia.org/wiki/Sexual_harassment


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igital media% !e pages and e2mail

:omputer code

Art

4$molic speech (e.g.% flag2urning% !earing an armand)

6estrictions on the content or #ie!point of expression are generall$ prohiited.

4ome historic exceptions exist (e.g.% fighting !ords% defamation% oscenit$) seeR.!.%.

octrines of #agueness and o#erreadth (Hreasonale personH standard)

:ontent2neutral time% place and manner regulations ma$ e permissile.

:ontent2neutral restrictions on conduct (rather than the content of speech) that incidentall$ s!eep in

some speech ma$ e constitutional (e.g.% discrimination statutes% la!s against treason% etc.).

:onduct #. content of speech distinction

C. -uestion, 'hat is the harm/ (6elate to !hat are the benefitseing protected $ the discriminationstatutes% and in !hat particular contexts.)

. There must e a limitation or denial of an educational enefit% or participation in an educationalprogram or acti#it$.

+. Mhat are those enefits in the educational contextN (6ights to learn% to participate in $our o!n

education% to e exposed to a #ariet$ of points of #ie!% etc.)>. 3ote the .4. epartment of Education"s polic$ guidance de#elopment on racial and sexual

harassment

5orms of harassment and discrimination

ifferent treatment (e.g.% differential grading ased on race)

Suid pro quo sexual harassment

ostile en#ironment

6easonale person standard (Hsimilarl$ situatedH 2 e.g.% reasonale !oman of same age% etc.)

Ex.' :le#eland 4tate/student in outside practicum at counseling center

Suestion' Mhat is reasonale in that settingN

Totalit$ of the circumstances 22 time% place% !ho is in#ol#ed% po!er relationships% etc. 3ote un!elcomeness* requirement for sexual harassment0 no real parallel in racial

harassment

!lger 8o#e% 8ust% and 8a!

C. 4 is a form of sex discrimination under Title ;11 (for emplo$ment purposes) and Title 1< (foreducational programs and acti#ities at institutions that are recipients for federal funding)

a. Title 1< allo!s $ou access to uni#ersities and colleges (almost all recei#e some federal funds). 3ot specificall$ in discrimination statutes

. T!o t$pesa. Suid 7ro Suo harassment ' authorit$ figure (explicitl$/implicitl$) puts achie#ement in

emplo$ment setting as ased on sexual fa#ors that are un!elcome $ the emplo$ed part$. ostile2en#ironment 4 ' :onduct that is of a sexual nature is and severe or ?ervasiveenough to create an environment that a reasonable ?erson 0ould +ind hostile or abusive& and

that limits an individual2s abilit to ?artici?ate in or bene+it +rom his or her em?loment or

education.*

C) As found examining the totalit$ of the situation*+. 4 is different than gender ased discrimination

a. 4 U sexuall$ related misconduct*. G&Rnonsexual% gender ased misconduct*


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:lassnotes

C. 1ncreasing numer of 4 et!een facult$ and !ith facult$ students. Mhat are managers responsile forN

a. Act promptl$ !hen the$ kno! or should ha#e kno!n*+. 5acult$/4tudent 6elationship

a. 5acult$ must tell ean he has a sexual relationship>. 8a! makes a difference et!een super#isor and non2super#isor,. 3on discrimination statement $ uni#ersities% different ut similar to its regard /c it is required $

some agencies

a. 5ederal la! requires such a statement. o!e#er% often times "s !ill make a polic$ as a guideline to a#oid liailit$ and to a#oid

putting the in an uncomfortale situation

. Mhat can e discriminated against under 5ed la! (ie not illegal)a. 4exual orientation

+. 4exual arassmenta. iffers from sex discrimination

. Action of a sexual natureC) T!o cases that are extremel$ important to sexual harassment (refer to :tools)

C. EE-:' if $ou are a super#isor and engage in 4 and there is a tangileemplo$ment action that results% then $ou and $our institution are losing /c$ou are a representati#e of the institution.

. 4 et!een peers is serious0 ut not as serious as !hen 4 et!eensuper#isor and lo!er ranked emplo$ee

a. Affirmati#e defense' no tangile emplo$ment and lack ofcooperation

. 9ich office looks at all t$pes of discrimination complaintsa. ni#ersit$ ma$ not find the situation as qualif$ing for 4 ut the uni#ersit$ ma$ still e

displeased !ith the eha#ior and fire/discipline the facult$ memer (inappropriate conductthat doesn"t qualif$ as 4 under uni#ersit$ polic$)

Q. ;icarious 8iailit$a. Emplo$er ma$ e held #icariousl$ liale for discrimination

Z. Gro!ing iscrimination :omplaints to EE-:a. 4exual harassment. isailit$c. 6etaliation

D. 4 in 8a!C. 5ederal la!' Title D students0 Title Q facult$. 4tate la!' Elliot (N) ill

4 5acts

C. t$pes'a. 3uid pro @uo' Jthis for that0" see less of this ut still existent. 4e;ual Harassment in hostile enironment(must ha#e all the follo!ing elements)

C) :onduct that is of sexual nature) n!anted and un!elcome+) 4e#ere% persistent% or per#asi#e to the point that it interferes !ith person"s

ailit$ to learn


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C. All three elements must e met. (easonable person standardR!ould a reasonale person consider the

ao#e elements to ha#e een metN

a. &oth sujecti#e and ojecti#e standard+. Ex' rumors% displa$ing pornograph$% pictures% un!anted personal

attention% touching0 spectrum goes all the !a$ up to assualt

>. Mhat is Jun!anted and un!elcomeN" :an take care of this if thecomplaint person has at least told the #iolator to stop and conductcontinues

,. 1ntention is irrele#ant% the result of action is !hat matters (defense of J1didn"t mean for it to e taken that !a$Y" doesn"t count)

a. 4trict liailit$. &e mindful of !ho is the super#isor/manager+. E#en !hen off of ni propert$% it !ill e still considered under uni#ersit$ polic$

-ther iscrimination

C. 8ook at the follo!ing factors' Examine content% nature% scope% duration% frequenc$% and location

a. 4imilar to the criteria of 4 in hostile en#ironment minus (C) conduct that is sexual innature

4tandard of 7roof' 7reponderance of e#idence that the e#ent/acti#it$ is discriminator$

)hie+ Illini0ek

5acts' 1ndians said the mascot !as offensi#e.1ssue' id the mascot create a hostile en#ironment% thus #iolate Title ;1Nolding' 3o% the incidents !ere not se#ere or per#asi#e enough to create an en#ironment that areasonale person !ould find hostile or ausi#e*

$oe v. ichigan http'//!!!.c.edu/c_org/a#p/cas/comm/free_speech/doe.htmlW3ote the constitutional tension et!een the ideals of freedom and equalit$W5acts' 1n response to a numer of discriminator$ e#ents% like the passing of literature calling for openseason* on saucer lips%* 9 instituted a ne! 4peech :ode (listed elo!).olding' :ourt struck do!n 9"s speech code on CstAmendment grounds. The court agreed !ith o!that the polic$ !as o#erroad. The 4upreme :ourt has consistentl$ held that statutes punishing speech orconduct solel$ on the grounds that the$ are unseeml$ or offensi#e are unconstitutionall$ o#erroad%* thecourt !rote. Examining the complaints that had een filed under the polic$% the court determined thatthe ni#ersit$ could not seriousl$ argue that the polic$ !as ne#er interpreted to reach protectedconduct.* The court also determined that the polic$ !as unconstitutionall$ #ague ecause people !ouldha#e to guess at the meaning of the polic$"s language. The court reasoned that it !as simpl$ impossile

to discern an$ limitation* on the polic$"s scope and reach. The court concluded' Mhile the :ourt iss$mpathetic to the ni#ersit$"s oligation to ensure equal educational opportunities for all of its students%such efforts must not e at the expense of free speech.*

3otes'

ni#ersit$ loses this case% despite putting forth a polic$ composed of language taken straight from thefederal guidelines

Documents

Higher Education Outline