Higher Education General Themes Exercise of discretion and professional judgment (academic freedom and educational mission) Academic

c 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$one else% ut ecause our mission is different. o (&each article' (ni#ersities are essentiall$ )pu lic trusts%* and their trustees are trustees for the pu lic.) (see p. +,) -ur mission is not necessaril$ to e as efficient as possi le 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 same as 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$224taff22Administration22Alumni22Trustees/6egents227oliticians' 8egislators% go#ernors% etc 22Accrediting odies 22General pu lic/taxpa$ers 229edia 4ources of 8a! :onstitutions 5ederal (sa$s nothing a out education) 4tate (man$ esta lish s$stems of higher education) 4tatutes (e.g.% discrimination statutes such as Title ;1% Title 1<% A.A% 4ection ,=> of 6eha ilitation Act% A.EA0 5E67A) Administrati#e rules and regulations (e.g.% .epartment of Education on financial aid0 -ffice for :i#il 6ights polic$ and enforcement ?note examples of polic$ guidance on racial harassment and race2targeted financial 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$ hand ooks)

Accrediting agencies -ther go#erning odies (3:AA% conferences% ;atican) :ontracts (including collecti#e argaining agreements) Academic custom (ex.' academic freedom0 AA(7 polic$ statements) :ase 8a! (note distinctions et!een elementar$ and secondar$ and higher education) 7ri#ate #. 7u lic The 5irst Amendment to the (.4. :onstitution applies to indi#idual rights #is2A2#is pu lic institutions onl$0 5irst Amendment rights do not exist at pri#ate institutions. E#en at pu lic institutions% rights of free speech are limited $ the )pu lic 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 7u lic $ 3B legislature in CD,E 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 e pro#ided $ Fale !ith alternati#e housing or to e permitted to opt out of the dorms and seek pri#ate housing near the school. The$ sue Fale. /olding' Fale is pri#ate% thus not su ject to :onstitutional restrictions. G oard mem ers is not sufficient to pass the Lebron Test 1n the !ake of 8e ron% 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!% (G) the go#ernment created the entit$ to further go#ernmental o jecti#es% and (+) the go#ernment retains Hpermanent authorit$ to appoint a majorit$ of the directors of the corporationH !ill the corporation e deemed a go#ernment entit$ for the purpose of the state action requirement. State v. Schmid 5acts' .% !ho !as not a student at 7rinceton (ni#ersit$% !as arrested for criminal trespass !hile distri uting political materials on the (ni#ersit$Is campus !ithout ha#ing first recei#ed permission from (ni#ersit$ officials% as required $ a (ni#ersit$ regulation. /e sues 7 claiming C st amendment issues /olding' 3o state action requirements not meet against 7% a pri#ate institution% ho!e#er#er there is room for his 4tate :onstitutional claim. &$ gi#ing no )reasona le guidelines* 7 did #iolate ."s rights !hen the$ got him for trespassing. :t% )the #ague Jregulations" !ere not a reasona le means of protecting its interests.* Test' 6equired the court to alance indi#idual expression rights !ith propert$ rights in the context of free speech at a pri#atel$ o!ned uni#ersit$. Schmid articulated three factors' (C) the nature% purpose and primar$ use of such pri#ate propert$0 (G) the extent and nature of the pu licIs in#itation to use that propert$0 and (+) the purpose of the expressi#e acti#it$ undertaken on such propert$ in relation to oth the pri#ate and pu lic use of the propert$. Giles v. Britchard

5acts' a preacher !ho frequents pu lic uni#ersit$ campuses and distri utes religious tracts K sermoniLes from quadrangles challenges the ( !ho seeks to restrict his right to sermoniLe. 1ssue' (C) !hether an open area on a pu lic uni#ersit$"s campus should e considered a pu lic forum for speech purposes0 and (G) !hether campus officials can exercise )un ridled discretion* in regulating speech on pu lic uni#ersit$ propert$% e#en if the speech occurs in a pu lic 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 applica le here% :ornellIs disciplinar$ records are not su ject to 5-18 disclosure. -ther% more pu lic aspects of the statutor$ colleges ma$ !ell e su ject to 5-18% ut !e need not and do not reach such issues toda$. Academic 5reedom German -rigin Lehr+reiheit, 5reedom to teach professors should e free to conduct research and pu lish findings !ithout fear of reproof from the church or the state (adopted $ AA(7 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 responsi ilities to the pu lic% 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$one disagree !ith that statementN Mho mightN) Tenure is a means to certain ends: 5reedom of teaching% research% and extramural acti#ities. A sufficient degree of economic security to make the profession attracti#e to men and !omen of a ilit$. Academic Freedom includes rights and corresponding responsibilities: Teachers are entitled to full freedom in research and in the pu lication of results% su ject to the adequate performance of their other academic duties &(T research for pecuniar$ return should e ased upon an understanding (O) !ith the authorities of the institution.

Teachers are entitled to freedom in the classroom in discussing their su ject% &(T the$ should e careful not to introduce into their teaching contro#ersial matter% !hich has no relation to their su ject. 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 not no! endorse such a departure.* -uestion, Is that true toda./ College and uni ersity 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 o ligations. As scholars and educational officers% the$ should remem er that the pu lic ma$ judge their profession and their 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 not speaking 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 responsi ilities' &oth pu lic and pri#ate institutions generall$ em race the concept (note )limitations clause* applica le to religiousl$2affiliated institutions) Effects of the AA(7"s 4tatements 9an$ organiLations ha#e endorsed the 4tatement o#er the $ears This statement is incorporated into most facult$ hand ooks% 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 #is2A2#is pu lic institutions onl$0 5irst Amendment rights do not exist at pri#ate institutions. E#en at pu lic institutions% rights of free speech are limited $ the )pu lic 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 ar itrar$ 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 re uttal 6a an' :onstitutional academic freedom thus ma$ pro#ide professors more protection for professional speech and less protection for unprofessional speech than the free speech clause !ould afford the same statements $ non2academics. :ase 8a! S0ee1. v. State o+ NH +,> (.4. G+>% CD,Q 5acts' 7rofessor refuses to ans!er questions a out his famil$% friends% and the su stance of his lectures (e.g.% did he espouse 9arxismN) (9c:arth$ era)

1ssue' .oes go#"t ha#e compelling interest to o#ercome Cst and C>th Amendments /olding' 4:-T(4% Marren !riting% found that the go#ernment"s inquir$ into the su ject matter of a (ni#ersit$ of 3/ lecturer"s presentations )unquestiona l$ !as an in#asion ?of the lecturer"s@ li erties in the 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 guide and train our $outh. To impose an$ strait jacket upon the intellectual leaders in our colleges and uni#ersities !ould imperil the future of our 3ation. 3o field of education is so thoroughl$ comprehended $ man that ne! disco#eries cannot $et e made. 7articularl$ is that true in the social sciences% !here fe!% if an$% principles are accepted as a solutes. 4cholarship can"t flourish in an atmosphere of suspicion and distrust. Teachers and students must al!a$s remain free to inquire% to stud$% and gain ne! maturit$ and understanding0 other!ise our ci#iliLation !ill stagnate and die. 6ole of uni#ersities in sustaining democrac$ note the parallel of this case to present2da$ de ates a out national securit$% the 7atriot Act% and international scholars and students. 5rankfurter"s concurrence also recogniLes institutional academic freedom o )1t is the usiness of a uni#ersit$ 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 four essential freedoms* o+ a universit.R 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 in Bakke and other cases.@ 3ote' the nature of the freedoms mentioned hereRall relate to the educational functions% ut do not esta lish un ridled 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 $ust something special about the %ni ersity The follo!ing cases are a out emplo$eesRthere are t!o t$pes of emplo$eesRpu lic and pri#ate 7u lic/pri#ate emplo$ee doesn"t ha#e Cst amendment !ith a pri#ate emplo$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 pu lic ( couldn"t 6ealm of pri#ate od$ tr$ing to pre#ent pri#ate speech (can do it more easil$ than) pu lic od$ tr$ing to pre#ent pri#ate speech 7u lic/pri#ate emplo$ee has Cst amendment rights regarding pu lic emplo$er Suestion to ask' Mho is limiting $our speechN 1f it is a pu lic% then $ou can look to C st amendment. 1f it is pri#ate entit$% then $ou"re out. :ourts look to see if it is a pu lic entit$ and look at G factors' o C. Are $ou speaking on a matter of pu lic concern/citiLenN (this is the easiest question to ans!erRif no% then the$ don"t ha#e to go through the more difficult test elo!) o G. &alancing test /! the emplo$ees interest and the emplo$er"s interest 1nterest of emplo$er T Cst amendment right of the emplo$ee

.oes it make a difference if the facult$ mem er is tenured or notN o 3o. :onstitution treats oth (non2tenure/tenure the same)

Levin v. Harleston Gnd :ircuit% CDDG 5acts' 7hilosoph$ tenured professor (8e#in) that has letters% re#ie!s% and talks a out his #ie!s that African American people are on a#erage less intelligent than :aucasians. .ean o#errides the department chair $ responding. (p to this point% no complaints from students a out 8e#in"s teachingRno past complaints of racial differentiation. 1n response% the ( does the follo!ing (and !hich 8e#in lodges his complaint)' C. 4hado! class a. The )shado!* class allo!s to students to a#oid his class. G. Ad hoc :ommittee a. ( 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/groups Argument' 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 relief 6uling' 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 prohi ition of speech* is not necessar$ for the #iolation of C st 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 !ith other disruptions Equal treatment (e#en though it is equall$ ad) Take A!a$' The court found no e#idence that 8e#in"s expressions of theories outside the classroom harmed the students and the educational process !ithin the classroom. 1t focused on the )chilling effect* on speech resulting from :(3F"s actions. 'aters CDD+ ( et!een Levin and 5e++ries) /olding' the go#ernment ma$ fire an emplo$ee if the go#ernment has a reasonable belie+ that the emplo$ee ma$ create disruption

Exemplar$ of the idea that there should e some deference gi#en to emplo$ers !hen e#aluating an emplo$ees" speech. &ernard finds this trou ling as it is so #ague and potentiall$ road

5e++ries v. Harleston 6778 5acts' Beffries gi#es speech off2campus% makes )derogator$* remarks a out Be!s in his speech. &oard of Trustees limits his term as .epartment :hair. Argument' Befferies argues that Cst amendment #iolation% seeks puniti#e damages and reinstatement (/4tate' !orried that his remarks !ill create a disruption in the ("s operation in the future o Also% the position is administrati#e thus no A5 (ni#ersities" argument is founded on the 'aters decision. 7rocedure' 4pecial #erdict in fa#or of Beffries. Bur$ sa$s' C. .emoted due to his speech G. 4peech didn"t disrupt the school +. .efendants acted /c of fear that speech !ould disrupt the school

4up. :rt. decides 'aters after this case is heard on the lo!er le#el. ( ases its appeal on 'aters' Go#"t can fire emplo$ee for )disrupti#e elief ased on reasona le elief* of !hat the emplo$ee said% regardless of !hat !as actuall$ said.* 5inal /olding (after reconsideration in light of 'aters9' :ourt deri#es + factors $ !hich to judge this case' C. ( had reasona le elief of the disruption% and this is !h$ he !as dropped from :hair of &oard G. .isruption (potential) greater than the )#alue of speech* +. Emplo$er"s actions are ased on speech% not retaliation &alancing test of 'st amendment rights of employee . (ights of employer" Waters adds to the employer)s rights Additions to the alread$ existing test (7ickering2:onnick) o The more the facult$ mem er"s speech touches on )matters of pu lic concern%* the more the pu lic emplo$er has to sho! that the speech is )likel$ to e disrupti#e* (C+) Go#"t in this caseR urden to sho! the )likel$ interference* not actual interference Take A!a$' Beffries" academic freedom !as not infringed $ reducing his term as department chair ecause of his speech (!hich in#ol#ed a matter of )pu lic concern*). &ecause the position of chair !as )purel$ ministerial%* and pro#ided no greater pu lic 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 of Levin 5acts' ;A enacted a la! that restricts the a ilit$ of state emplo$ees to access sexuall$ explicit material on state2o!ned or leased computers. 4e#eral ;A pu lic college and uni#ersit$ professors challenged the la!% alleging that it interfered !ith their academic freedom to research and teach. The la! allo!ed emplo$ees to access such materials !ith permission from a state agenc$ head (!hich could e uni#ersit$ deans and department heads)% if deemed necessar$ in connection !ith a ona fide research project or other undertaking. 8a! in ;irginia prohi its pu lic emplo$ees from accessing porn% unless the$ get permission from the .ean 4tate Arg' Me !ant to control ho! our emplo$ees use state propert$

5ocusing on the person as a pu lic 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$Rspend more time on paper!ork Mhat a out those facult$ 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$ mem er0 it should e the institution (pu lic% post2secondar$) that should regulate the actions of the facult$ mem er Emplo$ee :oncerns' (C) #iolation of Cst amendment2 this is la!ful% !h$ are !e from prohi ited from seeing themN o Suestion' are !e regulating these persons as emplo$ees or as peopleN 6emem er these computers are paid for $ tax pa$ers 1ssue' The public concern test is applied by the ,th Circuit: A alancing test that !eighs the interests of the institution #. the interests of the speaker. /olding' 7rofessors do not ha#e a constitutional right to #ie! sexuall$ explicit material on computers o!ned or leased $ ;irginiaIs state uni#ersities. 4a$s that go#ernment can control the speech ecause it pa$s for it. -Any right of academic freedom under the 'st Amendment . . . inheres in the %ni ersity" not in indi idual 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 $ AA(7 and others to e a radical departure :ourt recogniLes indi#idual academic freedom in dicta as a matter of polic$% ut distinguishes it from constitutional protection (remem er different sources of la!% and their hierarch$)0 8uttig echoes this distinction on p. G=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. G=C) (6emem er Levin K 5e++ries cases from last !eek). o Appl$ing the Cst amendment in this setting is trick$ ecause% man$ times the facult$ mem er 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 face ook) /eference to Educational /ecisions )1t is !ell esta lished 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$* test applied to considerations of race) o %nderinclusi e: 1t prohi its onl$ some speech that allegedl$ distracts emplo$ees from jo 2 related duties. (Suestion' 1sn"t the real pro lem a management challenge of making sure that people are doing their jo s and getting their !ork done% regardless of the source of possi le distractionsN) o 2 erinclusi e 0o erbreadth1: 1t prohi its legitimate research and commentar$ on a #ariet$ of disciplines and social pro lems (as !ell as illegitimate !e 2surfing to porn sites on !ork time) 3otes' 2ther Types of Challenges' e.g.% agueness (reasona le person can"t figure out !hat is prohi ited).

The majorit$"s citation to 5rankfurter"s concurrence in S0ee1. and its em race of institutional autonom$% perhaps in an effort to sho! that the ( is still a )special place*

:lass /$pothetical' 6asmussen &log 7rotectedN 3uestions to Consider /o! is the !e site la eled (personal #. institutional)% and ho! clear is its role Mhat do other facult$ do on their !e sites/ 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 Cst amendment /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 pu lic G8&T communit$ 9edia 4ome Policy 5ssues to Consider: 4tatements $ (ni#ersit$ leadership (see -"3eil article) :ompare to Levin and 5e++ries cases and the school"s response in each case 7ro#ision of !e sites 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 <ickering (67=>) /olding' The dismissal of a pu lic school teacher for pu lic statements regarding issues of pu lic importance% !ithout a sho!ing that his statements !ere kno!ingl$ or recklessl$ false% #iolated his 5irst Amendment right to free speech. 4upreme :ourt of 1llinois re#ersed and remanded. .oesn"t matter if it is done in pri#ate or pu lic settingRit"s the topic/discussion itself that !ill e e#aluated A pu lic emplo$ee does not relinquish 5irst Amendment rights to comment on matters of pu lic 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 in connection !ith regulation of the speech of the citiLenr$ in general.H The pro lem% !e thought% !as arri#ing Hat a alance et!een the interests of the ?emplo$ee@% as a citiLen% in commenting upon matters of pu lic concern and the interest of the 4tate% as an emplo$er% in promoting the efficienc$ of the pu lic 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 of pu lic concern and the interest of the 4tate% as an emplo$er% in promoting the efficienc$ of the pu lic ser#ices it performs through its emplo$ees.

)onnick v. .ers (4ame S as <ickering) /olding' 9$ersI questionnaire touched upon matters of pu lic concern in onl$ a most limited sense0 her sur#e$% in our #ie!% is most accuratel$ characteriLed as an emplo$ee grie#ance concerning internal office polic$. The limited 5irst Amendment interest in#ol#ed here does not require that :onnick tolerate action% !hich he reasona l$ elie#ed !ould disrupt the office% undermine his authorit$% and destro$ close !orking relationships. 9$ersI discharge therefore did not offend the 5irst Amendment.... Renken /olding' 5or the ( ecause' )1n order for a pu lic emplo$ee to raise a successful 5irst Amendment claim% he must ha#e spoken in his capacit$ as a pri#ate citiLen and not as an emplo$ee.* 6enken"s criticism of the (ni#ersit$% the :ourt argued% !as clearl$ part of his emplo$ment duties ecause administering the grant as a principal in#estigator fell !ithin the teaching and ser#ice responsi ilities that he !as emplo$ed to perform. (en+en admitted to e speaking as an emplo$ee. 1n the !ords of the court% )6eporting alleged misconduct against an agenc$ o#er !hich one has general super#isor$ responsi ilit$ is part of the duties of such an office.* &ecause (en+en had raised his criticism !ithin the (ni#ersit$ (and not% sa$% in a local ne!spaper)% the 4e#enth :ircuit felt it did not need to consider )!hether his speech addressed a matter of pu lic concern to determine !hether it ?is@ not protected $ the 5irst Amendment.* Hong v. Grant 5acts' Tenured facult$ !ho complains a out e#er$thing (from hiring to mone$ spending) (ni#ersit$ then denies him merit pa$. /e argues that his complaints caused the non2pa$ment. (ni sa$s the cause is his lack of pu lishing. /olding' doesn"t matter0 e#en if the nonpa$ment is re the critique% the uni#ersit$ can do so. 5acult$ at uni#ersities !ill e treated just like other emplo$ees speaking in the scope of their emplo$ment emplo$ees Garcetti (4ame S as a o#e) 5acts' The plaintiff in the case !as a district attorne$ !ho claimed that he had een passed up for a promotion for criticiLing the legitimac$ of a !arrant. /olding' 4tatements made $ pu lic emplo$ees pursuant to their official duties are not protected $ the 5irst Amendment from emplo$er discipline. &ernard' 1f this case applies to (ni#ersities% it !ill s!eep a!a$ all other common la!s protecting facult$ it makes facult$ #ulnera le o 6ejoinder' Renken& Hong0 get !histle lo!er protection0 define academic freedom in the contract

9essage of 6enken% Garcetti etc.' Bust ecause $ou are tenured at a uni#ersit$ does not mean $ou can disrupt the uni#ersit$. Suestion to ask in /igher Ed' Mhen this communication took place% !as the gu$ acting in the scope of his emplo$mentN

Garcetti Article Attempts to e#aluate the impact of Garcetti on higher education la! through an anal$sis of the cases decided to date. This necessaril$ requires some speculation ecause !e still do not ha#e a su stantial num er of lo!er court decisions appl$ing Garcetti in that context% particularl$ !ith respect to facult$ mem ers. 3e#ertheless% the existing case la! reflects some patterns that ma$ signal the significance of

Garcetti for pu lic institutions of higher education and their emplo$ees. 1n general% those patterns suggest that Garcetti is likel$ to ha#e the effect of su stantiall$ limiting the 5irst Amendment protection afforded to speech $ emplo$ees and perhaps e#en the academic freedom enjo$ed $ facult$ mem ers. Tenure and Academic Freedom &ro!n K Ourland Article Ad ocate tenure as a means of ad ancing AF *ain 5ssue' .oes tenure promote academic freedomN 0A: 6es1 2 erall: 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 pro lems (!ho has urden% !hat is cause% !hat is .7N) Trend' 9o#ing a!a$ from tenure for greater flexi ilit$ :urrent 4tatus' the scarcit$ of jo s in higher ed% decreases tenure opportunities ut expected to open up !ith the retirement of post2 a $ 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 dismissal o (nclear as to the criteria for dismissal. 9a$ e !ritten in the ("s regulations0 or general guidelines pro#ided $ the "Q+ :omm. on Academic Tenure o :omm. on Academic Tenure outlines criteria as' ).ishonest$* in teaching/research )4u stantial )manifest neglect of dut$% and 7ersonal conduct !hich su stantiall$ impairs the indi#idual"s fulfillment of his institutional responsi ilities* 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 pro ides a protection to faculty that they don)t ha e 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$ mem er o 6isk that the facult$ mem er might e a )dead!ood*Rno contri ution 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)RA.A 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*

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 Cst and C>th can"t do that G) $ube v. State *ni o+ NY' court said that 78 should e heard /c he thought his firing !as retaliation . Counter' :ourts support the academic freedom of the institution and not the indi#idual (Garcetti) C) Board o+ Regents o+ state )ollegs v. Roth held that non2tenured facult$ mem er doesn"t require a hearing% has no )legal right to kno! !h$ she is eing fired.* .ue process (C>th) requires that the issue e a out propert$ or li ert$R(ni can terminate contract of emplo$ment !ithout due process C. 1ssue' 1s the tenure title considered propert$ or li ert$% thus allo!ing for due processN a. These cases appl$ the standard in <ickering@)onnick G. 1nternal Tri unals a. :omplications of !hat the term period for facult$ if no tenure . 9ain dispute a out non2tenure scenario is !hat !ould e the action !hen dismissal is an option (just let the professor goN) c. WAlso complications regarding researchRif the grant follo!s the prof and attached to the ( R!ouldn"t that complicate the equationN d. S"s' !hat is the process no!ada$s for facult$ (tenure #. non2tenure) !hen faced !ith dismissalN .oes the tenured get a form of due process through the (N Mhat a out the non2 tenured facult$N SG' /o! !ould grants affect the non2tenure scenarioN +. Term Tenure a. Term tenure' A longer period term O ( ut still not guaranteed continuanc$) >. 1nterrupti le Tenure a. 1nterrupti le tenure' e#aluation after a period of time !hich (if not satisfied) can lead to dismissal C) :ostl$ (a lot of resources and time spent in doing e#aluations) G) :riticism that it !on"t help0 unsure if it !ould sol#e the pro s of tenured facult$ Connell 9 4a age Does Collegiality Count? :ollegialit$ (getting along !ith others) is indirectl$ taken into account in facult$ e#aluations the past% courts ha#e upheld the use of collegialit$ as part of its e#aluations in cases !here the dismissed facult$ mem er takes legal action. o 4hould e seen as a part of the others% not separate &$ separating it% $ou ma$ get a chilling effectRlack of contradictions in facult$ opinions% etc. 7ressure to get along !ith people ):ollegialit$ is not a distinct capacit$ to e assessed independentl$ of the traditional trium#irate of scholarship% teaching% and ser#ice. 1t is rather a qualit$ !hose #alue is expressed in the successful execution of these three functions.* :ey' courts ha#e generall$ deferred to academic institutions in their use of collegialit$ as a criterion. Tradition of cooperation

: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$ and harmoniousl$ !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 consideration the profs difficult$ in getting along !ith the others of her dept. 1L sa$s that it"s a reach of O /c uni !as supposed to e#aluate her onl$ on teaching% research% and ser#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$thing a out collegialit$. & 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"t thought 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 Affirmati e Action Faculty Concerns Grat1 and Grutter onl$ touch upon AA in regards to student admissions E;ecuti e 2rder ''<,=' those institutions recei#ing federal funding in exchange for practicing affirmati#e action in emplo$ment o 4tates ma$ ha#e statutes prohi iting affirmati#e action in state related decisions ut ha#e an escape clause !hich sa$s that $ou don"t ha#e to a ide to this if it eliminates $our eligi ilit$ from federal funding 1n hiring practices% di#ersit$ factors onl$ come in during the final stages (pick #alid contestants from the pool and onl$ during indi#idual anal$sis is di#ersit$ looked at) o .i#erse approaches $ colleges in discerning one facult$ potential from the other% incenti#es for depts. To create a more di#erse od$ :urriculum 8imitations

Mhat to do if the prof is teaching something in the class that the (ni doesn"t appro#e of (pu lic institution of course )N o (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. Nevada 4up. :rt. 3; G==G 5acts' 9c: .enied tenure. (nder the emplo$ment O% she gets $earl$ e#aluations% su 2tenure re#ie! after + $rs. Tenure ased on C) )instruction* (teaching)0 G) )research* (includes )expectation of pu lication or compara le producti#it$0 * and +) )ser#ice* (participation in the school% facult$% students). 4he !as the onl$ person !ho !as graded on collegialit$ for su 2tenure re#ie! (the other tenure candidates !eren"t). .efinition of collegialit$' )more than academic colla oration !ith colleagues% ut also contri uting to a positi#e !ork en#ironment.* Appeals the decision of non2tenure through (ni#ersit$"s Appeals 4u committee !hich recommends re#ersal. (ni president declines her tenure ut gi#e her a one $ear nonrene!a le contract. 9 sues for declarator$ and injuncti#e relief or damages. 7rocedure' trial court grants (ni"s judgment on motion on pleadings0 78 appeals this Argument' 1nitial claim 78 sues for reach of O to grant tenure or promotion0 reach of implied co#enant of good faith and fair dealing0 !rongful termination0 11E.0 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 process Oe$' (ni#ersit$ has road discretion in deciding tenure $ determining that collegialit$ can e a factor in such a decision. (7laintiff had alleged that secret letters !ere solicited from facult$ and staff as part of her re#ie!% !hich !as not ordinaril$ done.) &ernard' Me gotta feel for the facult$ mem er thinking )Mh$ is collegialit$ just no! eing a criterion for m$ tenure offerN* *<enn v. EE") 5acts' 6osalie T. is a !ell2kno!n person in usiness !orld. 4ues for race/sex/national origin discrimination and that she should ha#e gotten tenure. 5iles !ith EE-: !ho asks for info from (7enn (!ants to see re#ie! files of T and the other ppl !ho !ent through the process at the same time). (7enn declines releasing the files to EE-: sa$ing that it is pri#ileged information. The$ !ere peer re#ie! letters/material/peer re#ie! files of her competitors. 7rocedure' EE-: denies petition and enforces the su poena through .ist. :rt. Appellate affirms and denies .5"s argument that Cst amendment academic freedom )principles* protect the peer re#ie! materials Arguments' 7enn makes G arguments' (C) !e are not co#ered $ this statute (G) $ disclosing this info our academic freedom is compromised. The court should not e a le to access these :ourt"s 6esponse' (C) gi#e us a reak no (G) This stuff isn"t going to e pu lished an$!here. /olding' Cst amendment protection of academic freedom doesn"t protect disclosure !hen it is sho!n to e rele#ant in determining discrimination charges. EE-: can access this material it is not pri#ileged. 6easoning'

o .isclosure is necessar$ for EE-: purposes0 if denied then it could e pro lematic in the o o o o
9isc future regarding discrimination claims in the uni#ersit$ setting0 also it !ould support similar pri#ilege in regards to !riters% pu lishers .isclosure has een denied in the past for certain categor$ of docs% ut this doesn"t fall in an$ of those (not presidential% not jur$ communications% or intra2agenc$% etc.) 3ot first amendment pri#ilege 7ast cases dealt !ith the )control ?of@ uni#ersit$ speech that !ere content ased and that constituted a direct infringement on the asserted right to determine on academic grounds !ho could teach* This is not a case of )content ased regulation*

o Mh$ is this under the go#"ts concernN ((7enn pri#ate) A' Title Q claim o Gets to the pri#ate institution through the :ommerce :lause o 1f $ou emplo$ XC, persons% then :: applies o , things appl$' race% gender% sex% color% ethnicit$ Treatment of emplo$ees and !ho the emplo$ees associated !ith
General 3otes 1f there are too man$ people !ho should e getting tenure ut not getting it% then the institution gets a ad reputation Tenure processes (general) o 6ecommendations from #arious le#els of academia (dept% pro#ost% etc.) goes to the oard o 9an$ processes do a regular re#ie! of facult$ to let them kno! ho! the$ are doing o General e#aluation of tenure is + part' (C) Teaching (G) 6esearch K scholarship% (+) 4er#ice There ma$ e external factors that ma$ affect the decision of tenure (re2structuring% financial exigenc$) 7ri#ate institutions ma$ add on more things (i.e. religious institution ma$ ha#e a contri ution to church criterion) See discussion of collegiality above TenurePerspectives and Challenges AA(7 6easons for dismissal for a Tenured 7rof (C) 5or :ause0 (G) 5inancial 4ituation0 (+) 7rogram :losure0 (>) 7h$sical or 9ental .isa ilit$ o -nl$ if it"s #er$ seriousl$ facing financial pro lems should the institution let go of its tenured facult$ o :an the ( fire tenured profs if exiting out the deptN o /earing required to make sure that there are no inappropriate factors eing pla$edN Accepta le Grounds for .ismissing Tenured 5acult$ C. -/ismissal for cause.' uni has its o!n standards that it follo!s !hich ma$ include )neglect of dut$Yprofessional or personal misconduct%* etc. G. Termination of a program' 3o more dept and can"t re2locate facult$ !ithin the school +. -Financial e;igency.' financial crisis and the$ ha#e to let facult$ go so the$ can sa#e the institution a. )7re2plan* is necessar$ to fulfill these plans >rades Classnotes

C. 5acult$ usuall$ ha#e the right to decide grading0 a. /o!e#er% uni#ersities can require a standard !ithin the institution (ha#e its o!n structure) G. 1s the standard placed $ uni#ersit$ encroaching the facult$"s academic freedomN a. 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 esta lished $ the +.
institution 7erspecti#es a. 4tudents' /a#e a right to get a gradeN C) 3ot a specific right ut a general expectation G) 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 AA(7 position' facult$ mem er responsi le for grades% not doing an$thing unla!/unfair The amount of deference gi#en to post2secondar$ institutions pro a l$ !ill keep an$ litigation from proceeding in going against the grading s$stem (standard set $ uni) (%LE' the school can"t force the professor to speak/change the grade% ut the school can do so itself Academic #. non2academic a. 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

>. ,. E. Q. Z.

Eu en% AA(7 :ounsel% 9ichigan :hapter 'ho Grades StudentsN 6elationship 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% (G) !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 Grades 4tudents rarel$ !in !hen challenging grades% and rightfull$ so. Mith that said% their challenges are #alid if the professor has failed to pro#ide formal means $ !hich student can ring su stanti#e complaints o#er grades. AA(7 7olicies Applica le to Grading 2 CD>= 4tatement of 7rinciples on Academic 5reedom and Tenure sa$s that grading is part of )facult$"s right* in e#aluating a student"s a ilities !ithin the classroom and regarding the su ject. 2 Grading is' C) it is up to the facult$0 G) the procedure not e )prejudicial or capricious0* +) (ni#ersit$ can"t change or assign a grade !ithout facult$ appro#al o This supports the idea that administration should not take upon the responsi ilit$ of assigning grades !ithout the input and consideration of the facult$ mem er o Grading is part of the professor"s responsi ilit$ 2 5acult$ mem er is ordinaril$ solel$ responsi le% ut mechanisms for appeal should exist to ensure that 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 a facult$ responsi ilit$ &radsha! 7rimerA ! Student !++airs !cademic atters

2 2 2 2 2

3ote the difference et!een academic #. misconduct/non2academic disciplinar$ action 7ro lems exist !hen the student fails some standard of a professional school/department o 1f it is academic less procedure than if it is disciplinar$ 3o set process in dealing !ith academic sanctionsYho!e#er% !hat should e included' o 3otice to the student and opportunit$ for the student to present his side o .ismissal should e done !ith consideration and procedures 7ri#ate institutions are looked at as a contractual relationship !ith its students &asic stuff that pu lic institutions should take into account !hen dismissing student' o 3otification of the criteria $ !hich the student !ould e dismissed o 3ames of those !ho !ould e a le to make statements regarding the situation (against the student) o -pportunit$ for the student to present his facts of the stor$ o .isco#er$ to the student

The !ssignment o+ )ourse Grades and Student !??eals 2 Guidelines $ American Association of (ni#ersit$ 7rofessor"s (AA(7) regarding gradingRussued $ its :ommittee A on Academic 5reedom and Tenure The (ight of an 5nstructor to Assign >rades 2 ;ie! the professor"s authorit$ of assigning grades as part of his )freedom in the classroom*R eing the person !ho #ie!s and assesses the student in the classroom 2 Generall$% the professor should e the onl$ part$ !ho has authorit$ in assigning grades The (ight of a 4tudent to Appeal 2 AA(7 promotes an appeal s$stem that takes into consideration oth the student and the professor 2 6e#ie! of grading dispute should e conducted $ facult$ and the process of re#ie! should e determined/appro#ed of $ the facult$0 change in grade e determined $ the facult$ o 3ot the administration[ Procedures for Appeal 0recommendations by the Committee1 2 4tudent first meet !ith the facult$ mem er0 if issue is not resol#ed% then the student approach administration of the department 2 .ept. administrator should talk !ith the facult$ mem er if he thinks that the student has a point0 if the matter still remains% then e heard $ ad hoc committee 2 Ad hoc committee composed of facult$ in the department or related fields of stud$. Examine the matter in dispute% meet !ith student and facult$ mem er% and !ho e#er it thinks rele#ant o 5acult$ committee ma$ decide on changing the gradeRgi#e the professor !ritten reasons0 instructor ma$ decline $ pro#iding explanations. 1f he declines% then committee look at his reasons and if still thinks the grade need e changedRcontact administration of the department !ho !ill ask the grade to e changed. 1f the facult$ mem er still declines% then the administrator ma$ change the grade and tell the instructor and student of the action. To note% administrator ma$ onl$ change the grade upon the appro#al of facult$ committee !ho has the authorit$ to o#erride the facult$ mem er"s o jection to the grade change. 2 There is an element of due process #isi le in pu lic institution proceedings regarding student dismissal. 2 Mhen dealing !ith a pu lic institution and student related case% the courts ha#e not outlined a specific procedure for due process0 in the past% courts ha#e ackno!ledged that due process in

such a scenario depends on the facts of the situation. (4ee $iBon v. !labama State Board o+ Education GD> 5.Gd C,=% p. C,,) As a pu lic institution% the school ma$ ha#e a greater li ert$ in regards to student dismissal if the legislature has delegated it a !ide range of authorit$. (4ee )rook v. Baker% ZC+ 5.Gd ZZ). 1n )rook% the legislature pro#ided the 6egents of the (ni#ersit$ of 9ichigan . . . the authorit$ and po!er to re#oke :rook"s degree !ithout going to court* (D=).

<arate v. Isibor (Eth :ir. CDZE)' 5acts' 7arate is a prof at Tenn. 4tate (ni.% sues the (ni#ersit$ !hen O not rene!ed /c he !ouldn"t sign the memo changing student"s grade from & to A. 5acts of the caseRt!o students that oth ask for the grade change. -ne student is oked0 the second isn"t. Teacher looks at other factors to decide. The second time this issue arises% the uni tells professor to change his grading standard. Third time% there is disruption !ith the administration elittling the professor. 1ssue' 1f 7rofessor !ont sign the document finaliLing the grade change% is the (ni#ersit$ compelling the 7rofessor to speakN /olding' (ni #iolated Cst amendment0 grades are similar to communication et!een peopleRthe letter A denotes a communication et!een student and teacher (see it as a message et!een parties) and thus a!arded Cst amendment protection. :ourt notes that it is part of professor"s responsi ilit$ to assign grades ased on their judgment/e#aluation of the student. 9ain part of the professor"s teaching role. 2 :ourt also notes that professor has )no constitutional interest in the grades !hich his students ultimatel$ recei#e* 2 ;iolation of Cst amendment U administration forcing the professor to change the grades #. administration just changing the grades (no #iolation) 2 &asicall$% the uni !ould ha#e een fine if the$ had just changed the grades o#erriding the professor0 ho!e#er% the memo forcing the professor to change the grade is !hat got them caught under C st amendment 2 %ni can)t force the professor to spea+" but the school can o erride it 3ote' 7ost Garcetti% this is an interesting question ( /use it ma$ ha#e changed the ans!er)' is the grade speech $ the (ni or 7rofN Although it is still the dominant la!% there are jurisdiction in !hich it is ad la!. S.lvester v. TeBas Southern *niversit. 5acts' la! school student !ho loses Cst place position in her class !hen she gets a .. 4$l# protests orall$ and through !riting ut the school doesn"t respond. Teacher sa$s he lost the exam ut then finds it. The procedure esta lished $ the school regarding grade disputes is not follo!ed. Teacher !ill not gi#e a cop$ of the test for re#ie!. /e doesn"t go !hen the court orders him to go. .oesn"t follo! court orders. /olding' student should e afforded due process in her academic e#aluation. :ourt changes the student"s grade to )pass.* )1 don"t care if $ou kne! the questions on the test or not% ut $ou are ):o2#ale#ictorian* 2 This is the onl$ case a out the court siding !ith the student in regards to grade change0 usuall$ students lose the case. 1n this instance% the court sa! enough !rong to side !ith the student 2 &ernard' E#en in the academic realm% there must e some rational ehind grading 2 This is a #er$ extreme example !here it is pro#ed $ the court that this institution is not a le manage its o!n standards. Bro0n v. Li 5acts' &ro!n gets appro#al for his thesis $ the oard. Then adds disackno!ledgements section% including negati#e comments a out the administration. The$ !ithold his degree until he complies. /e

!on"t compl$ and the period of time expires. (ltimatel$ the$ decide to a!ard him the degree ut ha#e the original #ersion su mitted to the li rar$ not the one !ith the disackno!ledgment. After the degree% he rings in the suit to ha#e the section e put in. .oesn"t !ant to pro#ide the !riting unless the disackno!ledgment section is put in. ()1 !ould like to offer special #uck You2s to the follo!ing degenerates 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 officialsN 6uling0 Fes% The court sides !ith the uni#ersit$. 6easoning' 2 .isackno!ledgment section didn"t fall !ithin the criteria set out (not !ithin the rules) o There is no Cst amendment pro lem /c there are other #enues for him to express his speech 2 Mas the !ithholding of the degree disciplinar$ or academicN Academic decision 2 Argument that it is a out professionalismRtraining academics (and this is unprofessional eha#ior) 2 1n this case% it is important !hat the jur$ thinks in regards to the instructors/administration 2 3ote the court"s reliance on Ha1el0ood% (restricting letter in /4 ne!spaper stringent standard) a precedent from the elementar$ and secondar$ context the court concludes that Ha1el0ood articulates the standard for re#ie!ing a uni#ersit$"s assessment of a student"s academic !ork. The application of O2CG precedents to higher education% especiall$ in the academic freedom/institutional autonom$ context% is often highl$ contro#ersial. o Ha1el0ood ga#e extensi#e discretion to make curricular decision% and expressl$ adopted the anal$sis for higher education cases. 4ee 6einhardt dissent (pp. +C, et seq.) arguing that Ha1el0ood should not e applied to more mature students in the postsecondar$ setting. o Ha!elwood)s school sponsored speech' )Expressi#e acti#ities that students% parents% and mem ers of the pu lic might reason la$ percei#e to ear the imprimatur of the school" constitute school2sponsored speech% o#er !hich the school ma$ exercise editorial control% so long as its actions are reasona l$ related to legitimate pedagogical concerns.* 5mpramture' co#ers speech that is so closel$ connected to the school that it appears the 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 circumscri ed than in the school ne!spaper or other open forum. 4o long as the teacher limits speech or grades speech in the classroom in the name of learning and not as pretext for punishing th student for her race% geder% economic class% 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 reCuire an 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 academic standard. 6ather% as articulated $ Ha1el0ood% )educators do not offend the first amendemtn $ exercising editorial control o#er the st$le and content of student speech in school sponsored expressi#e acti#ities so long as their actions are reasonal l$ reltaede to legitimate pedagogical concerns.* 2 This case is THE LA? 2 The court is e#en confused a out !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 li rar$% gi#e him a degree% let him tr$ to succeed else!here.

(eligion and the Academy 1mportant to remem er there is a historic connection et!een religion and higher education (man$ American colleges and unis !ere founded $ religious sects). First Amendment: 7rohi its the establishment of an$ particular religion% ut also protects free e;ercise. The 3Limitations4 )lause in the 678; Statement o+ <rinci?les on !cademic #reedom and Tenure, Some "?erating Guidelines C. Full disclosure # 8imitations clause' pro#ision in the CD>= 4tatement of 7rinciples that )limitations of academic freedom b7c of religious or other aims of the institution should be clearly stated in writing at the time of the appointment .* G. :ommittee A' 1f restrictions are placed $ the institution it should disclose such restrictions that it has on academic freedom to its potential facult$ ()an institution that commits itself to a predetermined truth% and that inds its facult$ accordingl$% is not su ject to censure on that ground alone*). 4uch institution can"t represent itself as )institution freel$ engaged in higher education* +. There are institutions that mo#e from )constraint to freedom* (traditionall$ church2related institutions). Mhen the$ do this to enough of an extent% the$ are then applica le to the Statement2s requirements that include the limitations clause. >. Association"s treatment of a complaint' a. Guideline C' Association"s staff gets a complaint from a facult$ mem er and must determine !hether the institution is such that adheres to the academic freedom. 5actors considered' )stated mission0 its curriculum0 its accreditation0 its eligi ilit$ for tax support0 its criteria for selection of its go#erning od$% facult$% students% staff% and administration0 and the !a$s in !hich it presents itself to the pu lic in ulletins% catalogues% and other pronouncements.* C) .ecline in#estigation if staff concludes that the institution is not one that adheres to the academic freedom pro#isions of CD>= 4tatement . Guideline G' 1f general secretar$ authoriLes an in#estigation% then the ad hoc committee grades the institution against the Statement considering the factors highlighted in Guideline C. 1f it finds that the institution must compl$ to the pro#isions and if the institution has made use of limitations clause% then the committee needs to figure out the )degree of specificit$ of the limitation* and if the institution had )sufficient procedural safeguards* to make sure that the application of its rules !ere )adequatel$ ca ined.* C) :omments include that the restrictions ha#e to e explicitRcan"t just sa$% the teaching is )religious* and that"s that. 1t has to e explicit in that the restriction ars all Jcontradictions that go against the principles of the :hurch." G) Ade@uate e;plicitness' it #aries% depends on the degree. &roadl$ drafted limitations don"t meet the requirements for Jadequate explicitness." c. Guideline +' :ommittee A decides !hether to recommend censure ased on the ad hoc committee"s report 1) :ommittee decides that institution is not su ject to the CD>= Statement2s requirement of academic freedom not recommend censure 2) :ommittee decides that institution is su ject to CD>= Statement and adhered to terms of limitation clause not recommend censure unless it finds that the institution failed to pro#ide academic due process or #iolated some other pro#ision of the Statement or standards espoused $ the Association

3) :ommittee decides that the institution is su ject to Statement and didn"t adhere
to the terms of the limitation clause recommend censure.

,. 4ource of authorit$' AA(7 has censure po!er% ut no formal legal authorit$.

!cademic #reedom and the %atican2s EB )orde Ecclesiae (9aGuire) &ackground C. CDD=R7ope Bohn 7aul 11 issues apostolic constitution regarding :atholic higher education. All professors (part2time and full2time) at colleges and uni#ersities related to 6oman :atholic :hurch are required to get a mandate from the area"s ishop (deadline for mandate' E/C/G==G). a. 7urpose of mandate' make sure that the teachings are in line !ith the :hurch. 1dea that not all )freedom of inquir$ is la!ful.* Mant to make sure no teaching is professed as :atholic that goes against the church"s teachings (teachings of the religionR ishop% pope). . Appeal of the mandate"s denial !ill e handled through the church and not academic due process. Author"s criticism of the apostolic constitution (1 read a out a possi le chill here% as !ell) C. The hierarch$ s$stem (of ishops gi#ing mandates to professors) goes against the :atholic teachings on the )legitimate role of the theological magisterium and on the definition of a theologian.* (magisterium U teaching office% ut also translated as !hat ishops/pope teach)' The chill. a. The t!o different definitions of the !ordRone (the theologian) has in the past een seen as allo!ed to criticiLe the other (pastors). . 6eference to Aquinas (historical figure) as ha#ing di#ided the )teaching offices* of the teacher from that of the pastor. c. 1dea that the church encompasses the present as !ell as the past. The pastor"s role is the teaching of the past and shouldn"t limit the theologian teacher !ho !orks !ith the present% thinking of the church as it exists in present societ$. G. 7uts professional theologians under the authorit$ of those outside academia (those judgingR ishops Rdon"t ha#e the expertise to judge)' li e !udges. +. ;iolation of ci#il status of uni#ersities. Although religious institutions% the higher education institution 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 academic freedom. The$ an )emit ut not contradict the su stanti#e identit$ of the institution.* . The order for the mandate (Ex :orde) also fails as a proper legislation /c it !ill e interpreted differentl$ depending on the ishop. >. &ernard' There is a least a tena le position supporting the idea that there ma$ e more freedom in a sectarian school gi#en the$ !ill listen to religious arguments. /oo#er Blocking the -uran C. 5ederal judge denied student"s request for temporar$ restraining order on the requirement to read and discuss a ook a out the Ooran. G. 7laintiff"s are a ;A2 ased :hristian group that argued #iolation of church2state separation0 also lists three anon$mous students !ho sa$ that the ook !as selected to create a fa#ora le #ie! of 1slam and opting 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 G2hr discussion session and do a one2page assignment ased on the reading. 4tudents !ere gi#en the option to opt out of the discussion $ !riting a one2age essa$ telling !h$ the$ o jected to it. Molterstorff Ivor. To0er /e argues that academic freedom al!a$s has strings attached% just as free speech is not an a solute right.

)There is more freedom to discuss religion in the pri#ate sector than in the pu lic sector of higher education. )1n the pri#ate sector% one can explore and espouse religiousl$ grounded lines of thought that one !ould not e allo!ed to explore or espouse in the pu lic 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 $ the go#ernment. C. Tax2exemption is a pri#ilege and is intended to encourage certain t$pes of acti#ities for the pu lic good. G. 4tandard for ,=C(c)(+) exemption institution must ser#e the public interest (as defined $ certain road categories such as education)% and its purpose must not e so at odds !ith the )common communit$ conscience as to undermine an$ pu lic enefit that might other!ise e conferred.* +. 3ote ho! the decision reflects societal #alues and consensus (:ourt notes that )there can no longer e an$ dou t that racial discrimination in education #iolates deepl$ and !idel$ accepted #ie!s of elementar$ 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 inadmissi ilit$ and expulsion. /olding' 3onprofit pri#ate schools that prescri e and enforce raciall$ discriminator$ admissions standards on the asis of religious doctrine do not qualif$ as tax2exempt organiLations under the 1nternal 6e#enue :ode% nor are contri utions to such schools deducti le as charita le contri utions. Educational institutions that practice racial discrimination cannot e encouraged $ ha#ing all taxpa$ers share in their support $ !a$ of special tax status. &alancing test' The go#ernment"s o#erriding interest in eradicating racial discrimination su stantiall$ 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 there is a narro!l$ tailored strong go#ernmental interest G. :ompare to )opt2out* discussion in South0orth% !here some students o jected to certain student organiLations that recei#ed student acti#it$ fee funds. 'h. is this di++erent/ !Bson@#l.nn v. 5ohnson 5acts' 4tate uni#ersit$ theater student sued uni#ersit$% claiming that requirement that she speak all lines !ritten for her character during acting acti#ities #iolated her constitutional rights (free exercise of religion and free speech). 4he !as a 9ormon student in an actor training program. Mhen asked at the outset a out things that made her uncomforta le% she ga#e some examples of language she did not !ant to use. Mithout appro#al or notice to her instructor% she remo#ed some phrases she found o jectiona le. /er grade !as lo!ered on at least one assignment. Argument' 4chool claims that requiring students to perform offensi#e scripts ad#ances the school"s pedagogical interest in teaching acting in at least + !a$s' (C)1t teaches students ho! to step outside their o!n #alues and character $ forcing them to assume a #er$ foreign character and to recite offensi#e dialogue (G) 1t teaches students to preser#e the integrit$ of the author"s !ork (+) 1t measures true acting skills to e a le con#incingl$ to portra$ an offensi#e part. 3otes C. 5aciall$ neutral rules that incidentall$ urden the free exercise of religion are usuall$ upheld. G. :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

a. (Mhere the art con#e$s the artist"s expression% not that of the indi#idual performer.) >. :ourt talks a out the need to defer to educators (citing E!ing% /oro!itL). :omparison is made to
la! school students eing forced to articulate other points of #ie!. &ut compare the language here to the 8ouisiana la! clinic case last !eek (and its lack of deference)' ,. )The judicial deference to educators in their curriculum decisions is no less applica le in a clinical settingRas in this case !ith the AT7"s practical acting curriculum0 e#aluation in a practical setting Jis Y an Jacademic" judgment ecause it in#ol#es o ser#ation of Y skill and techniques in actual conditions of practice% rather than assigning a grade to Y !ritten ans!ers on an essa$ question.* (p. >DC) a. This should e compared !ith Southeastern Co""unity College v# Davis. E. 3ote comparison to disa ilit$ 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 religious reasons from certain degree requirements that offend their eliefs (!hereas other students could not a#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. G. :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 O2CG and postsecondar$ education ased on the age% maturit$% and sophistication le#el of the studentsY )argua l$ the need for 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% and mem ers of the pu lic might reason la$ percei#e to ear the imprimatur of the school" constitute school2sponsored speech% o#er !hich the school ma$ exercise editorial control% so long as its actions are reasona l$ related to legitimate pedagogical concerns.* i. 5mpramture' co#ers speech that is so closel$ connected to the school that it appears the 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 circumscri ed than in the school ne!spaper or other open forum. 4o long as the teacher limits speech or grades speech in the classroom in the name of learning and not as pretext for punishing th student for her race% geder% economic class% 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 not unmindful of the differences in maturit$ t!n uni#ersit$ and high school students. Age% maturit$% and sophistication le#el of the studetns !ill e factored in determine !hether the restriction is reasona l$ related to legitimate pedagocial concerns.* >. &ut' :ourt said there"s a genuine issue of fact regarding !hether the school"s real reason !as pedagogical% or religious discrimination #. 9ormons. a. .efendants must sho! that the script requirement !as a neutral rule of general applica ilit$% or esta lish that the requirement !as narro!l$ tailored to ad#ance a compelling interest. (6emem er exception made for Be!ish students.) ,. As long as a rule is not o#ert a out offending a specific religions% then it is ok. E. 4ince classroom is not pu lic% their guidelines must onl$ e reasona le. /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+/+,E/CGQQ/,+DZ=D/

i. 7aragraph CD for alancing test Q. 6ule (see again in E!ing) schools !ill get lots of lee!a$% so long as it is reasona le !ithin the
accepted academic norms% the court !ill not inter#ene a. 7retextRthe institution gets to decide. &ut in the end% the$ sa$ this test doesn"t matter. . G exceptions C) 4mith 6ule C. 3eutral rules of general applica ilit$ are su ject to rational asis test. a. 1f the pretext is there% then the urden the state must pass is strict scrutin$ asicall$% if la! is applied ar itraril$. i. Court finds issue of material fact' the$ think that the$ !ere appl$ing the la! ar itraril$% as against 9ormons. G) )/$ 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 another constitutional question strict scrutin$. a. )/$ rid rights )at least requires a colora le sho!ing* of infringement of a companion constitutional right i. :olora le' the plaintiff must sho! a fair pro a ilit$ or likelihood% ut not a certitude% of success on the merits of the companion #iolation. The inquir$ is #er$ fact dri#en and must e used to examine h$ rid rights on a case2 $2case asis. +) 1ndi#idualiLed exemption exception C. Mhere a state"s faciall$ neutral rule contains a s$stem of indi#idualiLed exemptions% a state )ma. not re+use to extent that s$stem to cases of Jreligious hardship" $ithout a co"pelling reason. The s$stem need not e formal% 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 $2case determinations does not appl$ to statutes that contain express exceptions for o jecti#el$ defined categories of persons. i. Court finds issue of material fact' permit Be! studtns to not attend impro#e acti#it$ on Fom Oippur !/out ad#erse consequence. +. &ernard' 197-6TA3T :A4E a. 1f no staff interjections like )change $our #alues/ eliefs* this case is a slam2dunk for the .. Linnemeir v. Board o+ Trustees o+ <urdue *niversit. (G==C) 5acts' 4tate residents tried to enjoin state uni#ersit$ from presenting pla$ that allegedl$ pu licl$ endorsed anti2:hristian eliefs (and therefore #iolated 5irst Amendment). The pla$% :orpus :hristi% depicts :hrist as a homosexual !ho had sexual relations !ith his disciples. The pla$ !as to e presented at a theater on campus that is open to an$ group that !ants to use it% so long as the use !ould comport !ith the uni#ersit$"s educational mission. The pla$ is eing put on $ a student (theater major) as part of his course requirements. The pla$ ill includes a disclaimer from the uni#ersit$% sa$ing that the uni#ersit$ did not select the pla$ or endorse its #ie!points. >. 1dea ofY a. 7u lic forum . 8imited pu lic forum' content controls it.

c. 3on2pu lic forum C) 4tate institutionRits theater is a non2pu lic forumRit"s not open to the pu lic. The
entit$ !ho has authorit$ is the state.

2) The state has more control as it mo#es do!n from )pu lic forum limited pu lic
forum non2pu lic 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$. e. 8ittle la!% lots of commentar$% like Bro0n v. Board o+ Education ,. The contention that the 5irst Amendment for ids a state uni#ersit$ to pro#ide a #enue for the expression of #ie! antagonistic to con#entional :hristian eliefs is a surd.* (Mhat a out teaching !orks $ thinkers such as ;oltaire% /ume% /o es% .ar!in% 9arx% 5reud% 4artre% Bohn .e!e$% etc.N) E. The majorit$ concluded Hthe school authorities and the teachers% not the courts% decide !hether classroom 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$. .issent' This ruling opens the floodgates for anti2religious speech of all sorts on campus. The forum !as not )pu lic%* and the speech could easil$ e attri uted to the (ni#ersit$. Ed0ards v. )al * <enn 5acts' The prof is teaching religion in a class that is not focused on religion. /e is using a non2appro#ed s$lla us. 7rof claims that (ni is imposing his Cst Amendment rights Arguments' A professor !ho !as suspended !ith pa$ for ad#ancing his religious eliefs through his lectures sued the uni#ersit$ for #iolating se#eral of his constitutional rights. The court rejected his claim% rel$ing on its conclusion that a pu lic uni#ersit$ professorsI 5irst Amendment rights do not extend to choosing their o!n curriculum or classroom management techniques in contra#ention of school polic$ or dictates. C. Ed!ards )$ou ha#e harmed me $ taking m$ propert$ !hen $ou didn"t let me finish the semester. 1 ha#e een stigmatiLed% and $ou did so !ithout due process (procedural).* a. :ourt sa$s stigma alone is not enough% he must sho! an ina ilit$ to secure future emplo$ment. /olding' 7rof does not ha#e the right to create his o!n curriculum0 A pu lic uni#ersit$ can control its o!n curriculum. 5acult$ has no independent right against the (ni#ersit$. AA(7% challenged on the result the$ don"t like the holding it is a reach of their standards for a facult$ mem er to ring in material that is not pertinent to the course. ()(C) 7rofessor Ed!ards does not ha#e a first amendment right to choose classroom materials and su jects in contra#ention of the uni#ersit$"s dictates ( school has academic freedom" not professor)0 and (G) Ed!ards failed to state a 7.7 i ert$ claim ecause he did not allege a depri#ation of emplo$ment (ST%G&' alone is not enough)) G. The court also reasoned that a uni#ersit$% as !ell as a professor% has certain academic freedoms% and therefore% a uni#ersit$ can make content2 ased decisions !hen shaping its curriculum. )om?are this case to Levin Dsanction9 Locke v. $ave. 4ee other .ocument 5ntellectual Property

W3ote ho! the (ni#ersit$ represents all possi le 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 7rogress of 4cience and the useful Arts% $ securing for limited times to Authors and 1n#entors the exclusi#e right to 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. :lassnotes 4lideshow: Copyright Laws C. 7urpose of cop$right la! ((4) is to promote pu lic learning a. Art. 1% 4ect. Z' )To promote the progress of science and useful artsY* C) This isn"t in :ommerce clause% !hich it could ha#e een stuck. 4tresses the importance gi#en to it. . 9ain purpose of cop$right la! is to )enrich the general pu lic through access to creati#e !orks* #ogert. v. #antas. (CDD>) c. A out encouraging others to explore $ the exploration of others so far G. :op$right requirements a. -riginal . Mork of authorship c. 5ixed in a tangi le medium of expression +. :op$right holder a. -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$"s fees b. G ppl do the !ork joint cop$right holders (e#en if not equal share of !ork) c. .efault rule' creator is the cop$right holder C) Exception' )Mork for hire* is the !hen the person creates something under the emplo$ment of another. Four !orks go to $our emplo$er if $our !ork is in the scope of the emplo$ment G) Mhen facult$ make !orks during their emplo$ment% it !ill e considered as cop$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 contractorR transaction 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$righta le !ork from the !ork of authorship c. :opies of a !ork% including the original (that has a cop$right% too) d. The underl$ing cop$right in a !ork exists e#en if $ou destro$ the !ork ,. 7ermissions and Transfers a. Exclusi#e rights are independent of each other and di#isi le indi#iduall$ . 8icense' permission to exercise one or more of the exclusi#e rights in specified !a$s

c. Transfer' assignment of control o#er one or more of the exclusi#e rights C) Transfers and exclusi#e licenses must e in !riting and signed $ the rights E. .uration of cop$right a. Time of the authors life% plus some . Enters the pu lic domain after a time then an$one can make those uses% e#er$one has the
a ilit$ to use it C) \ Js rights no longer attach to the !ork0 once in the pu lic domain% it sta$s there. G) Those that aren"t cop$righta le from the eginning are in the pu lic domain from the start Q. :op$right #. 7lagarism a. :op$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. .amages a. (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$right holder . Express permission c. 1mplied license d. 1n the pu lic domain e. Fair use C=. \ !as ne#er a out gi#ing cop$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 Y for purposes such as criticism% comment% ne!s reporting% teaching (including multiple copies for classroom 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

G. 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 commercial less likel$ to
e fair use

G. Transformati#e uses uses of the !ork that it !ould not ha#e een put to
other!ise (i.e. the author didn"t make this for the particular use it is eing used) . 3ature of the !ork eing used C) 5actual #. creati#e 1. 9ore creati#e less likel$ to e fair use 2. 9ore factual more likel$ to e fair use c. Amount and su stantialit$ of the portion used in relation to the !hole C) 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 original C) The t$pe of use (not indi#idual use)

C. (ndermining the potential market for the original cop$right holder G. 1f not affecting a protected market% then it"s ok. 1f it is a fair use% then not
harming the legit market of the rights holder. Gunnels and !lger -!nership% Exploitation and 7rotection of 1nt"l 7ropert$ 1ntroduction 1. + t$pes of propert$ (real% personal% intellectual)0 higher ed institutions ha#e pro s !ith intellectual !hich differs from the others since it is intangi le (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$0 . Trademarks under fed and state la!0 c. Trade secrets usuall$ state 7atent 7rinciples to 6emem er 111. 1n#entions that are non2o #ious% no#el% useful% and full$ disclosed through the (.4. 7atent and Trademark -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$% originalit$% and usefulness* i. 5iled in (4 !ithin C $r of in#ention or else considered !ithin pu lic"s domain. C $r grace period for foreign countries. ii. (4 gi#e patent protection ot the original creator #ersus foreign countries gi#e protection to the person !ho first files the paper!ork. iii. 1n (4% pro isional patent application !hich is like a )placeholder* until a more complete application can e turned in e. 7atent rights i. )Exclusi#e right to manufacture% sale% or use the in#ention* o#er the course of a set term of $ears (generic G= $rs) unless something specified f. 1nfringement i. 7atent includes a list of clams that tell !hat the in#ention does% and if another part$ is doing these acti#ities !ithout a license% it !ill e held lia le for damages ii. /octrine of e@ui alents' theor$ that one infringes upon another"s patent if he de#elops something that is similar to the original patented item iii. .amages' injunction% ro$alties for use plus interest% la!$er fees C. -nl$ for infringement that occurs !ithin E $rs of the complaint filing G. -nl$ if the patentee had )marked the in#ention* such that the pu lic kne! it !as patented0 or if the infringing part$ !as told and still continued :op$right 7rinciples to 6emem er ;. :op$right protectsY.*original !ork of expressions of an idea% not the idea itself* Author"s !ork as to e )fixed in a tangi le 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)

c. d. e. f. g. h.

;1.

7la$s (and their music) .ance/choreograph$ ;isual arts/graphics 9ulti2media !orks (mo#ies% etc.) Audio recordings (:.s% etc.) Architectural !orks (like architectural plans) i. To note% things in the pu lic domain aren"t co#ered. 1t isn"t the idea itself ut the mode of expressing the idea. 4o classic music is in the pu lic domain ut a particular and"s co#er of that classical music !ould e protected :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 the la!suit . 7rotection from the moment of the !orks creation to the death X Q= $rs of the author. 1f done under contract% the protection is D, $rs. c. Em odiment is sufficientl$ permanent to permit it to e percei#ed for a period of more than transitor$ 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$ e f. (.4. go#ernment documents are not protected

Trademark 7rinciples to 6emem er ;11. Mords% names% s$m ols% de#ices% or an$ com ination thereof% used to distinguish goods from those manufactured $ others% and to indicate their source. (4er#ice marks are the same as trademarks 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 other person tr$ing to pass of his product/ser#ice as the other"s 1<. 7rotection onl$ !ithin specific countries <. 5or infringement case% !ould ha#e to pro#e that confusion is caused et!een one"s product and the other"s through use of same trademark a. Trademar+ /ilution Act takes this past test out0 according to this% 78 has to sho! thatYC) mark is )famous0* G) .5 is using the mark commerciall$0 +) .5 used it after 78"s mark got famous0 >) .5"s )use presents a likelihood of dilution of the distincti#e #alue of the mark.* Trade 4ecret 7rinciples to 6emem er C. 5ormulas% patterns% de#ices or compilations of information used in usiness that pro#ide a competiti#e ad#antage o#er others !ho do not kno! or use them. -!nership C. The creator is ordinaril$ the o!ner (t!o or more creators ma$ e joint o!ners !ith joint rights)% unless the$ transfer the rights. G. Morks made for hire !orks created $ emplo$ees !ithin the scope of their emplo$ment elong to the emplo$er a. &ut note academic tradition and its relationship to protecting academic freedom (see% e.g.% AA(7 polic$ statement% (ni#ersit$ of 9ichigan polic$0 Gorman article) +. :op$right o!nership and credit are not the same credit ma$ al!a$s e gi#en to participants in a project% e#en if someone else holds the cop$right (ni#ersit$ 7olic$ and 7ractice

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)

G. (se of unusual (ni#ersit$ resources can trigger o!nership interest $ the (ni#ersit$ (see% e.g.% (29
polic$ at p. DG+) 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$s that create conflicts of interest or commitment for staff mem ers. (see (29 polic$ at p. DG>) Exclusi#e 6ights of :op$right -!ners (a ) undle of rights*) C. 6eproduction of the !ork in !hole or in part G. 7reparation of deri#ati#e !orks (e.g.% translations% musical arrangements% dramatiLations% sound recordings% and second editions) +. .istri ution of copies of the !ork to the pu lic $ sale% gift% rental% loan% or other transfer (!ith exception of )first sale doctrine*) >. 7u lic performance of the !ork ,. 7u lic displa$ of the !ork E. 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) G. 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 smallest possi le segments of !orksN C. 4ome suggestions' (C) Allo! greater use of !orks $ academic authors (G) Mhat a out tuition re#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#aila le to the pu lic* G. An$ aspect of one o ject is up for patent +. 3o patent for a stract 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 G. 7atent is a )negati#e right* gi#es the right to E<:8(.E others from practicing $our in#ention a. Ex' 7erson patents G !heel. Fou patent a ic$cle !ith a light. Fou need to get permission from the former person !ho has patented the roader idea. +. 7T- attles $ou end up narro!ing it do!n. The process takes a out G= >=O on a#erage

>. C., + $rs for the first rejection0 longer to get all the ends tied ,. 7ro s' 7T- has a lot of acklog. .isputes on the examiners competenc$
:onsistent 8egal 6egimes C. (ntil the CDZ=s% there !as difference in the appellate !ork regarding patent la!0 in earl$ Z=s% $ou ha#e a centraliLed s$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 pu licl$ disclosed . (4 has one $ear grace period from )$our first pu lic 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) $ou should start the application process A4A7 C) &/c in institution (ducation)% the institution"s counsel can start the application process earl$ efore disclosure. G) 7ro ' 4tudents don"t ha#e the same luxur$ (the mone$) G. 7rocess' a. Ask if there has een an$ pu lic disclosure (Ans!er must e 3o) . Application filed 7u lic .isclosure C. Thought that pu lic disclosure !as pu lishing% etc. The (lo?+enstein case sho!ed that this !as not the limitation. G. A#oid disclosure of in#ention don"t do full disclosure of $our in#ention a. 7ro lem in classes' 4tudents in mechanical engineering (example) ha#e to present their ideas. &ut as soon as the$ do the class presentation% the$ kill their 17 (intellectual propert$ rights). C) 4olution' /a#e language in the professor"s s$lla us that sa$s discussions are for classroom purposes0 su mission is ethind uni#ersit$ gate!a$ !here it is not pu lic. 4ho! the expectation of confidentialit$. This lea#es a paper trial just in case pro lem occurs do!n the roadRimplied/expectation of confidentialit$ +. 7ro lems to consider' export la!s regarding foreign student and American student interactions/discussion 6esearch or Experimental (se C. 7re#ious idea that $ou can use patents for research purposes this 14 3-T /E8. (7 under ade. a. 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 research exception. C) 4hrinks the research exception to the point !here it arel$ exists G. .efenses for pu lic uni#ersities a. CCth amendment' so#ereign immunit$ (can"t sue states for mone$ in federal courts) b. Biomedical <atent anagement )or? v. State o+ )! C) 3. :al and 5ed :ir upheld :al"s so#ereign immunit$ defense G) 4up :ourt denied re#ie! +) :riticiLed due to uni#ersit$"s increased assertion of their patent rights Tec Transfer C. 7re CDZ= Go#"t o!ned all federal funded in#entions G. CDZ=' &ayh # /ole

a. must reser#e research rights and go# rights . 4hare ro$alties !ith in#entors c. 6equire that licensees diligentl$ seek to sue the technolog$ and make the products in (4
5acult$ and 7atent C. 5acult$ get a re#enue share <rinceton * <ress v. $S Eth :ir. CDDE (DD 5.+d C+ZC) 5acts' cop$right shop that deals out course packs for the (ni#ersit$ of 9ichigan students. The other shops in the area pa$ ro$alties. This usiness doesn"t. Gets ad#ised $ a la!$er a !hile ack sa$ing that it"s a risk ut not necessar$ to pa$ ro$alties. 1n response to the claim of cop$right infringement% the cop$shop o!ner claimed that the creation of course packs for students !as a fair use under the :op$right Act. The defendants tried to argue that the market impact should e measured $ lost sales of ooks% not permission fees ( ut the court sa$s this argument goes too far and is circular). 6uling' The 4ixth :ircuit% in an en anc opinion% anal$sed the fair use factors and found that there !as 3- fair use. 6easoning' C. The use of material is for teaching purposes ut it is a out the for profit use of the material (commercial) G. Mhat if it !as a professor !ho !as doing the cop$ingN 1t !ould e different /c then it !ouldn"t e a commercial use +. :ourt looks at the scenario of income loss to the usiness% if e#er$ course pack shop didn"t pa$ ro$alties% there !ould e loss to the original authors/cop$right holders (> th factor) >. 3ote the dissents here (claiming that the majorit$ read the concept of )fair use* too narro!l$) a. Budge 9artin"s question' 4hould it matter !ho operates the photocopier (i.e.% the student or the cop$shop personnel)N . Budge 6$an"s dissent' )4ociet$ enefits !hen professors pro#ide di#erse materials that are not central to the course ut that ma$ enrich or roaden the ase of kno!ledge of the students. 4ociet$ is not enefited $ esta lishing a presumption that discourages professors from exposing their students to an$thing ut complete original !orks e#en !hen most of the !ork is irrele#ant to the pedagogical purposes% and students are not enefited or authors/pu lishers Eustl. compensated if students are required to purchase entire !orks in order to read the ,] or +=] of the !ork that is rele#ant to the course.* c. Budge 9erritt"s dissent (p. D,,)' 1t is !rong to measure the amount of harm to the pu lishers $ loss of a presumed license feeR ecause the$ ma$ not ha#e a right to collect such fees in the first place. 'eismann v. #reeman 5acts' The G parties co2authored man$ articles in the past. Meismann then listed himself as the sole author of a !ork that !as comprised in part of ne! material and in part of old material% and as a consequence% the ne! material !as her"s alone for cop$right purposes. 5reeman is suing. Meisman also claimed a )fair2use* defense. /olding' Boint authorship in prior existing !orks did not make the . a joint author in deri#ati#e !ork. )Each #ersion is a separate #ersion* :ourt denies M"s fair2use defense sa$ing% )the appropriation of her !ork could Jimpair her scholarl$ recognition"* Stan+ord v. Roche 5acts' (sing federal 31/ funding% 4tanford scientists de#eloped and patented a method of using 7:6 to measure /1; #irus concentration in lood plasma. The de#elopment !as done in partnership !ith the 7:6 leader :etus. The :etus 7:6 usiness !as later purchased $ 6oche% and 4tanford su sequentl$

offered to license the patent rights to 6oche (for a su stantial ro$alt$). After negotiations stalled% 4tanford sued 6oche for patent infringement. 6oche claims that it has o!nership rights or 2 at least 2 shop rights to the 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. (The in#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$% is critical to preser#e standing in a la!suit. 4tanford !ould ha#e !on the case R at least the o!nership issue R if it had !ritten its emplo$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 ground of race% color% or national origin shall not occur in connection !ith programs and acti#ities recei#ing 5ederal financial assistance and authoriLes and directs the appropriate 5ederal departments and agencies 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 a sence of sexual orientation as a co#ered status 2. Title ;11 prohi its discrimination $ co#ered emplo$ers on the asis of race% color% religion% sex or national origin (see >G (.4.:. ^ G===e2G?G+@). Title ;11 also prohi its discrimination against an indi#idual ecause of his or her association !ith another indi#idual of a particular race% color% religion% sex% or national origin. An emplo$er cannot discriminate against a person ecause of his interracial association !ith another% such as $ an interracial marriage a. 1n the late CDQ=s courts egan holding that sexual harassment is also prohi ited under the Act.itle ;111 +. Title 1< 2 The la! states' H3o person in the (nited 4tates shall% on the asis of sex% e excluded from participation in% e denied the enefits of% or e su jected to discrimination under an$ education program 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 su ject to Title ;1 lia ilit$ exists if' a. 6acial harassment is sufficientl$ se#er% per#asi#e or persistent so as to interfere !ith or limit the a ilit$ of an indi#idual to participate in or enefit from the education ser#ices% acti#ities or pri#ileges pro#ided $ a recipient . The recipient had actual or constructi#e notice of the raciall$ hostile en#ironment0 and c. 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 mission of an institution of higher educationN /o! does that mission differ from other contextsN C. Exposure to the mar+etplace of ideas 2 e#en unpopular or contro#ersial ideas that some students might 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*EA/*EAT 2 4ome core principles' 5irst Amendment protects expression in a #ariet$ of forms ' ;er al and !ritten communication Graphic representations

.igital media% !e pages and e2mail :omputer code Art 4$m olic speech (e.g.% flag2 urning% !earing an arm and) 6estrictions on the content or #ie!point of expression are generall$ prohi ited. 4ome historic exceptions exist (e.g.% fighting !ords% defamation% o scenit$) see R.!.%. .octrines of #agueness and o#er readth (Hreasona le personH standard) :ontent2neutral time% place and manner regulations ma$ e permissi le. :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 benefits eing protected $ the discrimination statutes% and in !hat particular contexts.) G. There must e a limitation or denial of an educational enefit% or participation in an educational program 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 6easona le person standard (Hsimilarl$ situatedH 2 e.g.% reasona le !oman of same age% etc.) Ex.' :le#eland 4tate/student in outside practicum at counseling center Suestion' Mhat is reasona le 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< (for educational 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 G. T!o t$pes a. Suid 7ro Suo harassment' authorit$ 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 ?ervasive enough 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?lo.ment 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*

:lassnotes C. 1ncreasing num er of 4/ et!een facult$ and !ith facult$ students G. Mhat are managers responsi le 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 lia ilit$ and to a#oid putting the ( in an uncomforta le situation G. Mhat can e discriminated against under 5ed la! (ie not illegal) a. 4exual orientation +. 4exual /arassment a. .iffers from sex discrimination . Action of a sexual nature C) T!o cases that are extremel$ important to sexual harassment (refer to :tools) C. EE-:' if $ou are a super#isor and engage in 4/ and there is a tangi le emplo$ment action that results% then $ou and $our institution are losing /c $ou are a representati#e of the institution. G. 4/ et!een peers is serious0 ut not as serious as !hen 4/ et!een super#isor and lo!er ranked emplo$ee a. Affirmati#e defense' no tangi le emplo$ment and lack of cooperation E. (9ich office looks at all t$pes of discrimination complaints a. (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$ mem er (inappropriate conduct that doesn"t qualif$ as 4/ under uni#ersit$ polic$) Q. ;icarious 8ia ilit$ a. Emplo$er ma$ e held #icariousl$ lia le for discrimination Z. Gro!ing .iscrimination :omplaints to EE-: a. 4exual harassment . .isa ilit$ c. 6etaliation D. 4/ in 8a! C. 5ederal la!' Title D students0 Title Q facult$ G. 4tate la!' Elliot (N) ill 4/ 5acts C. G t$pes'

a. 3uid pro @uo' Jthis for that0" see less of this ut still existent . 4e;ual Harassment in hostile en ironment (must ha#e all the follo!ing elements) C) :onduct that is of sexual nature G) (n!anted and un!elcome +) 4e#ere% persistent% or per#asi#e to the point that it interferes !ith person"s
a ilit$ to learn

C. All three elements must e met G. (easonable person standardR!ould a reasona le person consider the
a o#e elements to ha#e een metN a. &oth su jecti#e and o jecti#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 the complaint person has at least told the #iolator to stop and conduct continues ,. 1ntention is irrele#ant% the result of action is !hat matters (defense of J1 didn"t mean for it to e taken that !a$Y" doesn"t count) a. 4trict lia ilit$ G. &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$% and location a. 4imilar to the criteria of 4/ in hostile en#ironment minus (C) conduct that is sexual in nature 4tandard of 7roof' 7reponderance of e#idence that the e#ent/acti#it$ is discriminator$

)hie+ Illini0ek 5acts' 1ndians said the mascot !as offensi#e. 1ssue' .id the mascot create a hostile en#ironment% thus #iolate Title ;1N /olding' 3o% the incidents !ere not )se#ere or per#asi#e enough to create an en#ironment that a reasona le person !ould find hostile or a usi#e* $oe v. ichigan http'//!!!. c.edu/ c_org/a#p/cas/comm/free_speech/doe.html W3ote the constitutional tension et!een the ideals of freedom and equalit$W 5acts' 1n response to a num er of discriminator$ e#ents% like the passing of literature calling for )open season* on )saucer lips%* (9 instituted a ne! 4peech :ode (listed elo!). /olding' :ourt struck do!n (9"s speech code on Cst Amendment grounds. The court agreed !ith .o! that the polic$ !as o#er road. )The 4upreme :ourt has consistentl$ held that statutes punishing speech or conduct solel$ on the grounds that the$ are unseeml$ or offensi#e are unconstitutionall$ o#er road%* the court !rote. Examining the complaints that had een filed under the polic$% the court determined that )the (ni#ersit$ could not seriousl$ argue that the polic$ !as ne#er interpreted to reach protected conduct.* The court also determined that the polic$ !as unconstitutionall$ #ague ecause people !ould ha#e to guess at the meaning of the polic$"s language. The court reasoned that it !as )simpl$ impossi le to discern an$ limitation* on the polic$"s scope and reach. The court concluded' )Mhile the :ourt is s$mpathetic to the (ni#ersit$"s o ligation to ensure equal educational opportunities for all of its students% such efforts must not e at the expense of free speech.* 3otes' (ni#ersit$ loses this case% despite putting forth a polic$ composed of language taken straight from the federal guidelines o 7olic$ !as o#er road and #ague it chilled academic con#ersation

 Mhat should uni#ersities sa$ in their policies thenN The (ni#ersit$ ma$ limit language that is protected $ the Cst Amendment This case delineates the Cst amendment issues in these t$pes of cases. Terms of 7olic$' o An$ eha#ior% #er al or ph$sical% that stigmatiLes or #ictimiLes an indi#idual on the asis of
race% ethnicit$% religion% sex% sexual orientation% creed% national origin% ancestr$% age% marital status% handicap or ;ietnam2era #eteran status% and that 1n#ol#es an express or implied threat to an indi#idualIs academic efforts% emplo$ment% participation in (ni#ersit$ sponsored extra2curricular acti#ities or personal safet$0 or /as the purpose or reasona l$ foreseea le effect of interfering !ith an indi#idualIs academic efforts% emplo$ment% participation in (ni#ersit$ sponsored extra2curricular acti#ities or personal safet$0 or c. :reates an intimidating% hostile% or demeaning en#ironment for educational pursuits% emplo$ment or participation in (ni#ersit$ sponsored extra2curricular acti#ities. o 4exual ad#ances% requests for sexual fa#ors% and #er al or ph$sical conduct that stigmatiLes or #ictimiLes an indi#idual on the asis of sex or sexual orientation !here such eha#ior' 1n#ol#es an express or implied threat to an indi#idualIs academic efforts% emplo$ment% participation in (ni#ersit$ sponsored extra2curricular acti#ities or personal safet$0 or /as the purpose or reasona l$ foreseea le effect of interfering !ith an indi#idualIs academic efforts% emplo$ment% participation in (ni#ersit$ sponsored extra2curricular acti#ities or personal safet$0 or :reates an intimidating% hostile% or demeaning en#ironment for educational pursuits% emplo$ment or participation in (ni#ersit$ sponsored extra2curricular acti#ities. )ohen v. San Bernardino State 5acts' 7rofessor is accused of talking a out sexual topics to students in class% ho!e#er the su ject matter has nothing to do !ith sex. A P of students then sa$ the$ feel uncomforta le in class the en#ironment is un!elcoming /olding' The school"s polic$ is so #ague that no one% not e#en the professor !ould kno! !hat !as prohi ited. Thus% the school #iolated the Cst amendment $ eing too #ague. o 7rofessor let off. 7ro lem' Tough for %ni ersity Tight tension et!een creating a place !here people can feel comforta le #oicing their opinion in the )market of ideas* ut the uni#ersit$ cannot condone discriminator$ ideas/practices As a pu lic institution% $ou must ha#e a process for making decisions% thus the$ are inclined to making policies% but this puts them at creating policies that are too #ague/o#er road/underinclusi#e o (ni"s need a polic$ to a#oid due process pro lems. Thus% the uni needs a polic$ and it need e almost perfect' tough to do. /o! does (9 do itN o 5ollo! the fed guidelines% )expect respect* campaign -ne solution' 5ight offensi#e speech !ith more speech. Mhat does that mean from the perspecti#e of the institution/its administrationN :an the$ do soN (e.g.% if a campus speaker offends man$ students)

o 3ote current challenges from the 5oundation for 1ndi#idual 6ights (516E) (e.g.%
4hippens erg (. in 7A% :itrus :ollege in :A)

o Track the anti2discrimination la!s0 recogniLe the different t$pes of enefits at stake in
different educational contexts

o Articulate #alues of tolerance and ci#ilit$ (non2enforcea le H#ision statementsH are -O) o (se other content2neutral regulations to limit disrupti#e eha#ior and expression
Affirmati e Action 6e#ie! of asic legal principles (equal protection% access% justice) and constituencies Educational #. legal judgments !hen should courts defer to educational judgments (compare to EE-: #. 7enn% e.g.) .iscussion of impact on outreach% recruitment% financial aid% academic support% and retention programs (small groups should discuss slides G>% GE% and GQ) 4ome issues to consider for programs in financial aid% outreach% recruitment% etc.' 4trict scrutin$ (compelling interest X narro! tailoring) /o! to demonstrate a compelling interest (research% articulate in policies% etc.) The remed$ing discrimination rationale #. di#ersit$ rationale 1ndi#idualiLed% holistic re#ie! &road definition of di#ersit$ lots of factors /o! to determine ho! much !eight to gi#e to race #is2A2#is other factors 6ace2neutral alternati#es (and race2exclusi#e #. race as a factor) &urden on other students 7eriodic re#ie!/endpoint /o! to decide !hat groups get included% and !hich do not .ealing !ith issues of mixed race :oncern !ith possi le -:6 complaints 1mpact of -":onnor"s G,2$ear challenge .ealing !ith donor intent &uilding a critical mass of students some attention to the num ers% ut not quotas or set2asides 7ri#atel$ funded programs that schools administer% or pro#ide significant assistance to Affirmati#e Action and 5inancial Aid 7urposes C. /elping ppl get in !ho !ouldn"t G. 6ecruitment purposes (!hat school $ou are going to chose) +. :ertain minorities come >. :ertain scholarships run out after a $ear and so this pro#ides for continued education CDD> Education Guidance C. 7romote di#ersit$ through financial aid (under Title E) G. 1f a M male had the same stats/financial need as a minorit$ student ut couldn"t /c exclusi#e to race R!ould this e allo!ed under CDD> GuidelinesN +. 6ace tolerated scholarship >. Ma$s to promote di#ersit$

a. 5actors that don"t include race at all% ut ha#e a disproportionate effect on the race. 1.e. Gi#e
more scholarships to 1nner cit$ schoolsRmore likel$ to get certain races

. 6ace as plus2factor0 makes $ou more likel$ ut not guaranteed c. 6ace exclusi#e program so long as sho! compelling interest and narro! tailoring0 no
urden on another group% no roader than necessar$ to promote di#ersit$

,. /o! do $ou get past Jquota" argument !hen $ou ha#e a race2exclusi#e program for recei#ing
financial aidN /o! does admissions differ from financial aidN E. /o! is the guidance helpful (legall$)N a. /elps school !ith the uncertaint$ that the$ had under BakkeRit !asn"t ok in this particular case ut there are plans that are ok. 8acks guidance and court confuses issue.7o!ell"s opinion oks it% ut not sure ho! to appl$ it. . :reates a roadmap for the schools. C) -ne aspect that schools didn"t do is the periodic re#ie!% or didn"t do it correctl$ G) 8ose sight of the origin of their programs 7rop G a response to Grutter and GratL. (emember: just ecause $ou can do something doesn"t not mean $ou 9(4T do it. 4o long as the polic$ in question does not #iolate a federal statue% it is ok. C. :riteria a. 5lexi ilit$ . :an"t undul$ urden G. 4trict scrutin$ standard of the court' a. :ompelling go#"t interest (Cst prongR!hat $ou are doing/!h$ $ou are doing it) . 3arro!l$ tailored to meet that interest (Gnd prongRho! $ou are doing it) +. :ourts didn"t address financial aid/raciall$ exclusi#e programs in their admission case a. Mhat does it mean for the financial aid policiesN . 1n graduate school admissions decision is ok0 ut in undergrad it isn"t /c the$ use a point s$stem >. CDDE% CDDZ a. :- defeated similar allot. A`% 91% -ORprop G2esque not a le to come to the allot ,. 7rop G=D a. 4tate can"t take action ased on race% ethnicit$% origin that !ould discriminate/grant preferential treatment to a particular group . 3ot !ell defined c. ;er$ much drafted against the (9ich in 9ichigan d. :ARif it is state mone$% then !e can"t ha#e an$ class consideration0 ut if it is federal mone$ then under prop G=D there is an exception for federal grant programs. Mith respect to pri#ate mone$% !e can"t take an$ more mone$ that is race targeted/race conscious unless it is distri uted in a !a$ that doesn"t ha#e a discriminator$ effect (match program) e. /olistic% etc. isn"t preferential treatment f. 7u lic education defined as recei#ing a diploma 5inancial Aid as a Mhole C. 6ace conscious G. 6ace targeted +. 6ace exclusi#e >. 6ace as a plus factor ,. 4o long as there is an educational justification for the fund% it is likel$ passa le

Bonathan Alger and /onna 4nyder -n Bune G+% G==+% the (.4. 4upreme :ourt issued its decisions in t!o challenges to the consideration of race as one of man$ factors in the admissions process at the (ni#ersit$ of 9ichigan' Grutter v. Bollinger et al. (8a! 4chool) and Grat1 v. Bollinger et al. (undergraduate :ollege of 8iterature% 4cience% and the Arts). The :ourt made clear that race is one of man$ factors that can contri ute to a di#erse student od$ that produces educational enefits for all students% and further held that the !a$ in !hich race is considered and !eighed as a factor must not e rigid or mechanical. 1n light of the :ourt"s guidance% uni#ersities around the countr$ ha#e een re#ie!ing their policies and procedures !ith regard to admissions as !ell as financial aid% recruiting% outreach% and retention programs in !hich race is a factor. This outline !ill include a summar$ of the decisions themsel#es% follo!ed $ anal$sis of their impact on these respecti#e areas' admissions% financial aid% and recruiting/outreach/retention. The :ourt"s decisions indicate that race can e considered as a factor under some circumstances Rnot that it must e. 1n some states (such as :alifornia and Mashington)% legal constraints that prohi it the consideration of race in admissions and other areas remain in force. Thus% in e#aluating the consideration of race in #arious t$pes of programs% it is important to e a!are of an$ rele#ant constraints under state as !ell as federal la!. CHEC: A43A C< 4tudents and their 2rgani!ations 'riting -uestion, You are asked to develo? a ?olic. +or .our universit. on the criteria +or ?roviding +unding and other +orms o+ su??ort +or student organi1ations/ 'hat 0ould .ou recommend& and 0h./ 1ssues' 7u lic #. pri#ate uni#ersit$ /&:(N 6eligiousl$2affiliated institutionN (se of space 8ack of funds to accommodate all requests0 need to prioritiLe 8ia ilit$ of (ni#ersit$/use of (ni#ersit$ name and logos 4ecurit$ and other legal concerns 1mpact on students and communit$ (hostile en#ironmentN) )Equal time* for opposing #ie!sN /o! to handle protests 9aking 6ules/7olic$' Educational mission 3um er of students in#ol#ed or interested (does this discriminate #. minorit$ #ie!pointsN) 6easons for denials /o! to handle appeals of denials Sualit$ of presentation and leadership 7ast record of organiLations (.o $ou keep track of ho! their e#ents goN)

:ontent2neutral time% place and manner regulations -ther policies that regulate conduct rather than the content of speech

7resentation' The 3exus &et!een 4tudent -rganiLations and the (ni#ersit$' 3a#igating :hange (.anica ;arner) C. 6ecogniLing student organiLations on (9ich"s campusR#er$ late in recogniLing/creating a relationship et!een the uni#ersit$ and the student organiLation 2CC== 6ecogniLed G. &enefits of student organiLationsRfind like2minded students% common goals% protecti#e/!elcome group counter to the majorit$ at times +. 7rior to G==> a. 3o uni#ersit$ structure for student orgs . .ecentraliLed and inconsistent distri ution of campus resources (funding% office space% etc.) c. 4tatement of 4tudent 6ights and 6esponsi ilities (#er$ late% not until CDDE0 a student conduct polic$). 3o formal accounta ilit$ process. :ould e attri uted to high independence of the student od$ d. :ommuter 6esidential ((29 5lint)0 a model to ser#e for the other (9 campuses >. :onsequences of the -ld ;ie! a. Mhen ad things happen% the uni#ersit$ legal dept. doesn"t kno! !hat to do ,. G==>' :ore #alues are outlined a. 6ecognition polic$ that ser#es the interest of oth uni#ersit$ and students . 6ight to freel$ associate !ith one another !ithout coercion and undue influence from the uni#ersit$ c. 4tudent participation is a #alua le experience C) The change !ent from a narro! focus of greek organiLations to the roadening that encompasses all organiLations. E. Three Tiered 4tructure a. 4ponsored -rganiLations C) (9ich. These are us. G) 3ot allo!ed' religious% political orgs.% ,=C (c) (+) pri#atel$ o!ned% affiliated !ith a separatel$ organiLed legal organiLation. 1.e. 9ich. 4tudent Assem l$ . ;oluntar$ -rganiLations C) 3ot us ut !ith some strings c. 3on2affiliated -rganiLations C) 3ot us0 no more rights than an$ student G) .on"t ha#e to sign the polic$% can choose !hoe#er the$ !ant to join +) 3ot the required structure of funding Q. 1f $ou pro#ide funding (4- or ;-)% then $ou ha#e to compl$ !ith the uni#ersit$"s polic$ of including persons. a. :an think of it as a cost2 enefit anal$sisR(o!n thought)0 the groups that are non2affiliated are sa#ing time from including persons that !ill just take resources (email% etc.) ut that don"t reall$ go !ith the group"s !hole mission Z. 6eligious Groups a. 9a$ ha#e standards that require a signing pledge of eha#ioral standards. . 9ake sure it"s not disparatel$ impacting groups c. -k if $ou ha#e in the pledge not date a non2:hristian ut not ok if the pledge sa$s $ou a stain from homosexualit$. /omosexualit$ group C) -n its face it is neutral 2 $ou eing a non2practicing Be! and pledge onl$ to date :hristians. This is different from ha#ing a disparate impact on homosexual ppl

Rosenberger v. *%! 5acts' 'ide !0ake ecame a registered student organiLation eligi le for funding from the student acti#ities fund% and then sought nearl$ VE%=== for printing costs. This request !as denied $ the fund administrator ecause 'ide !0ake !as deemed a Hreligious acti#it$H since it Hpromoted or manifested a particular elief in or a out a deit$ or an ultimate realit$H. 'ide !0ake appealed this denial !ithin the (ni#ersit$% and ultimatel$ the denial !as appro#ed $ the dean of students. A (ni#ersit$ of ;irginia regulation prohi ited funding of an$ groups that primaril$ promote or manifest #ie!s on the merits of religion. 1ssue' !hether a state2run uni#ersit$ ma$% consistent !ith the 5irst Amendment% !ithhold funds from student pu lications !ith a religious perspecti#e that the uni#ersit$ pro#ides to other student pu lications. /olding' The (ni#ersit$Is den$ing funds a#aila le to other student pu lications% ut not to a pu lication produced from a religious #ie!point% #iolates the 5irst AmendmentIs guarantee of free speech. The (ni#ersit$Is assertion that the exclusion !as necessar$ to a#oid #iolating the Esta lishment :lause lacked merit ecause the funds !ere apportioned neutrall$ to an$ group meeting certain criteria that requested the funds. The refusal !as )#ie!point discrimination* that #iolated the students" right of freedom of expression This is not an esta lishment clause issue0 (;A #iolated the students" C st Amendment rights $ limiting their right to speak. o 5urthermore% it !asn"t tr$ing to promulgate a certain #ie!point% just extracurricular acti#ities this part is contesta le. (;A% thus the state ma$ not discriminate against speech on the asis of its #ie!point. o The go#ernment ma$ not exercise #ie!point discrimination in a limited public forum% a space created $ the go#ernment in !hich speech ma$ take place according to guidelines the go#ernment itself creates. :ourt made a distinction et!een religious organiLation and religious acti#ities. 4:-T(4' (nless it"s a pra$er group% !e !ill not restrict it. -nce it has opened a limited forum% the 4tate must respect the la!ful arriers it has itself set (note the difference et!een pu lic and pri#ate institutions on this point). 1t !as not an Esta lishment :lause pro lem% ecause the o#erall funding program !as neutral to!ard religion (i.e.% it !as not esta lished to further religious #ie!points). The (ni#ersit$ had not excluded religion as a su ject matter. 1nstead% it selected for disfa#ored treatment those student journalistic efforts !ith religious editorial #ie!points. o The alternati#e !ould e for uni#ersities to screen expression of student groups for religious #ie!pointsRa igger pro lem. The (ni#ersit$ is not the speaker (this is not prescri ed curriculum% etc.)Rit is simpl$ pro#iding opportunities for organiLations and students to express themsel#es% ackno!ledging the di#ersit$ and creati#it$ of student life. 1t is not equi#alent to a direct tax to support a religion (go#ernment speech% endorsing religion% !hich is prohi ited)Rinstead% it in#ol#es den$ing rights to a pri#ate speaker !ho endorsed religion (and such speech is protected). 3o pu lic funds flo!ed directl$ to Mide A!ake"s coffers. 6emem er academic freedom discussions a out !hen indi#iduals or organiLations are speaking for themsel#es% #. speaking for the institution. This speech is unlikel$ to e attri uted to the (ni#ersit$ (p. +Z= note (ni#ersit$"s funding of a humor magaLine that has targeted :hristianit$ as a su ject of satire% and a pu lication designed to promote a etter understanding of 1slam to the (ni#ersit$ communit$).

4outer dissent' The :ourt relied on use of forum cases (e.g.% speaking on a pu lic street corner) ut this case in#ol#es pro#ision of a tangi le enefit. o 9ajorit$"s 6e uttal' 1f !e adopted the minorit$"s approach% !e !ould e forced to e#aluate each organiLation piecemeal. The dissent"s #ie! !ould require the (ni#ersit$ to scrutiniLe the content of student speech to ensure it does not ha#e too great a religious content and this is untena le &ernard' :ourt sa$s Mide A!ake is not prosel$tiLing% and to discriminate against it is to unconstitutional The court has augmented the notion of #ie!point of discrimination to the scope of just )religion* o T/14 4/-(8. 4-(3. 81OE 4:A81A 13 L")(E %. $!%EY

3otes' Mhile the terms are sometimes confused% #ie!point discrimination should e distinguished from content discrimination% !hich categoriLes t$pes of expression and does not restrict speech ased on the message con#e$ed. 5or example% a decision to displa$ onl$ a stract art is content2 ased% ut !ould e permissi le under the 5irst Amendment a sent e#idence of intent to suppress specific ideas. C. :ontent #. ;ie!point a. :ontent' su ject matter . ;ie!point' ideolog$ Board o+ Regents o+ the *niv o+ 'isconsin v South0orth. (4:-T(4% G===) En#ironment' There had een tons of cases regarding funds and student organiLations% and this !as the onl$ one to reach 4:-T(4% thus it sets the frame!ork up for such questions. 5acts' (ni#ersit$ of Misconsin is a pu lic higher educational institution. Each student pa$s a ++C.,=/$ear nonrefunda le acti#it$ fee that is segregated from the tuition charge and is deposited into the 4tate of Misconsin"s account. 5rom that account% the (ni#ersit$ allocates funds to #arious extracurricular student acti#ities. The funds go to registered student organiLations (64-)% a status for non2profit groups that are limited to student mem ership% and coordinate student life acti#ities on campus. 64-s o tain the funds through three methods' t!o of the three methods (G445% 4GA5) are $ application and process for re#ie! and appro#al that is )administered in a #ie!point2neutral fashion0* the third method is $ student referendum (not reall$ clear as to ho! this is done). The funding is ased on a re2im ursement plan rather than lump2sum distri ution. The (ni#ersit$"s polic$ lists reasons for !hich the funds ma$ not e used% including' gifts% donations% contri utions% legal ser#ices% )acti#ities !hich are politicall$ partisan or religious in nature0* a separate polic$ statement through G445 sa$s that it !ill not fund for )primaril$ political* entities such as lo $ist groups or those that are registered political group. /and ook contains guidelines for regulating 64- conduct and acti#ities. Arguments' C. 4tudents argue that the required% segregated fee to!ards student acti#ities #iolates their first amendment rights of free speech% free association% and free exercise. a. ;iolation due to their ina ilit$ to opt out of the fee requirement. G. The funds go to!ard furthering the (ni#ersit$"s mission% )enhancing the educational experience of its students $ promoting extracurricular acti#ities%* stimulating ad#ocac$ and de ate on di#erse points of #ie!% ena ling participation in political acti#it$% promoting student participation in campus administrati#e acti#it$% and pro#iding opportunities to de#elop social skills* that are )consistent !ith the (ni#ersit$"s mission* 1ssue' 1s the uni#ersit$"s method of dis ursement of funds (t!o programs adhering to a standard of #ie!point neutralit$ and the other for student referendum) a #iolation of student"s first amendment rights to free speechN

6ule' Fes and 3o. The #ie!point neutralit$ requirement adopted $ the (ni#ersit$ is )generall$ sufficient to protect the rights of the o jecting students0* the student referendum option of the funding program does not compl$ and is )inconsistent !ith the #ie!point neutralit$ requirement.* /olding' C. The justification for su sidiLing student organiLations through mandator$ fee allocations is to pro#ide students )the means to engage in d$namic discussions outside of the lecture hall.* a. A (ni that su sidiLes student speech for this purpose% ho!e#er% has a )corresponding dut$* to a#oid )infringing the speech and eliefs* of students !ho o ject to this use of their student fees a dut$ that ma$ e fulfilled $ assuring that the mandator$ fee s$stem is )#ie!point neutral* i. Thus the point of #ie!point neutral s$stem is that is protects academic freedom0 and the students right to insist on such protection is% in effect% C st amendment academic freedom. G. )#ie!point neutralit$ principle* as the primar$ criterion to use in e#aluating the constitutionalit$ of a pu lic institution"s mandator$ fee s$stem under their Cst amendment. +. The general standard is that an organiLation can require its mem ers to pa$ a fee that ma$ fund germane speech0 ho!e#er% cannot require persons to contri ute to an organiLation"s exact political expressions (this is esta lished in !bood and (eller) +. 1n relation to student fees and their requirement to e used in support of extracurricular acti#ities inclusi#e of speech% the )principal standard of protection for o jecting studentsY.is the requirement of #ie!point neutralit$ in the allocation of funding support.* The funds must e allocated in a manner that the uni#ersit$ is not directl$ funding/supporting a political expression. >. -nce again% see the appearance of uni#ersit$"s discretion in the courts. :ourt' C. 4tudents o ject to the use of funds for speech that the$ do not support a. !bood' nonunion pu lic school teachers required to pa$ a fee on condition of their emplo$ment that !as equi#alent to union dues. Teachers allege that unions use of fees in political speech goes against freedom of association i. :ourt' Agrees . (eller' :ourt rules that la!$ers can e required to join state ar association and fees go to acti#ities that are )germane to the association"s mission0* ho!e#er% cannot e required to fund the ar association"s o!n political expression. G. :annot appl$ the limitations of (eller and !bood to student speech in uni#ersit$ /c it is hard to esta lish the standard of !hat is germane speech. +. (ni#ersit$ discretionRif the uni#ersit$ thinks that certain extracurricular acti#ities ser#e its mission"s purpose% then it is )entitled to impose a mandator$ fee to sustain an open dialogue to these ends* >. This case deals !ith the collection of fees that ena le the opportunit$ of extracurricular speech (not appointed to specific lectures% etc. The funds are collected to support the general categor$ of extracurricular speech) ,. 3o difference et!een student acti#ities on campus and those off campus E. 3o #ie!point neutralit$ safeguard seen in the student referendum method. 6emand for consideration on that. 3uestion: ?hat are some safeguards you could build into the system to bolster iewpoint neutralityD Mritten criteria 6ecords of deli erations 7ro#ide !ritten reasons for denials upon request Esta lish procedures to a#oid conflicts of interest among decision2makers

Esta lish an appeal process 7u lic statements' )!e promote free speech* 7rocess -riented

:lassnotes C. The organiLations that allocate the mone$ are student organiLations that decide through factors as to !ho gets the mone$. 1t is done !ith facult$ super#ision. G. The student referendum s$stem sucks and is o jectiona le' it is a out the iewpoints and not the conduct. Fou can make the decisions ased on conduct (!hat the mone$ is going to!ards) ut not the #ie!points. This is not a neutralit$ #ie!point an$moreRThis creates the opportunit$ for the majorit$ to quash out the minorit$ #ie!point. +. .anica' $ou can ha#e a different #ie!point% ut $ou cannot disrupt the trajector$ of this group/organiLation S)L) v. Louisiana &ackground' 1nstitution/facult$/students #. state (pri#ate practitioners) 7eople associated !ith super#ised legal clinical education programs and communit$ organiLations as !ell as people !ho !ere clients of the students or !ere future potential clients rought action against the 8ouisiana 4upreme :ourt challenging the constitutionalit$ of its rule !hich limited circumstances under !hich unlicensed la! students could practice la!. 6elief sought' injuncti#e and declarator$ 5acts' 1n CDDE% Tulane En#ironmental 8a! :linic (TE8:) supplied legal ad#ice and representation to 4t. Bames :itiLens for Bo s and the En#ironment o The group !as formed to resist the construction of a 4hintech chemical plant in their communit$ and to raise pu lic a!areness of communit$ and en#ironmental health concerns related to the proposed plant E#entuall$% !ith the help of TE8: the resistance of the local communit$ dro#e 4hintech to reject the site and locate else!here This led to significant criticism of TE8: from 8ouisiana usiness and political leaders including the Go#ernor !ho tried to get Tulane to curtail the group. Tulane !as unresponsi#e. o The political and usiness interests urged the 84: to pre#ent TE8: and other clinics from continuing to aid communit$ groups o :riticism $ the Go#ernor% letter from cham er of commerce and #arious usiness organiLations 1n CDDQ% in response to these pressures% 84: launched an official in#estigation into the acti#ites of TE8:. The results !ere not made pu lic% ut t!o Bustices ha#e disclosed that no inappropriate or unethical eha#ior !as exposed CDDD% ne! amendments to 84: 6ule <<' o (C) indigence requirements !ere tightenedRrepresentation to indi#iduals or families !hose annual income is aG==] the federal po#ert$ guidelines. 9ust certif$ ina ilit$ to pa$ for legal ser#ices. o (G) communit$ outreach effortsRclinical student practitioners are prohi ited from representing in the role of attorne$s an other!ise qualified indi#idual or organiLation if an$ person associated !ith the clinic initiated contact !ith that indi#idual or organiLation for purposes of that representation .istrict :ourt found that there !as no depri#ation of an$ cogniLa le federal right.

o The indigence requirements did not implicate an$ Cst Amendment freedom of association or
speech% and the limitation of clinical ser#ices to the poor !as rationall$ related to the legitimate go#ernment purpose. .istrict court used rational asis re#ie!Rthe restrictions !ere justified ecause the$ !ere rationall$ related to the state"s legitimate interest in protecting the pu lic and monitoring professional ethics Arguments' 7' (C) rule is in#alid on its face ecause it is an impermissi le restriction of the 5irst Amendment freedoms of the indi#iduals and organiLations that are parties to this suit. (G) regardless of !hether or not it is faciall$ in#alid% the rule !as created in retaliationRis an impermissi le form of #ie!point discrimination .' (C) 3o clients are entitled to pro ono representation in ci#il cases so ha#e not een depri#ed of a protected right (G) there is no right of non2la!$ers to represent others in litigation% so this cannot e considered )speech.* Attorne$s ut not students ha#e freedoms to protect pro ono representation of clients for political reasons 1ssue' Mhether the 84:"s promulgation of the rule constitutes actiona le #ie!point discrimination in this context. /olding' (C) indigence requirements of rule did not implicate speech interests of potential clients and did not #iolate equal protection0 (G) solicitation restrictions of the rule did not #iolate the 5irst Amendment0 and (+) the amendment of rule did not constitute impermissi le #ie!point discrimination in #iolation of the 5irst Amendment 1ndigence 6equirements' This part of the rule does not% on its face restrict speech in an$ !a$ other than to limit clinical representation to clients !ho are poorRdo not implicate speech interests% correct to dismiss. o The rule prohi its the non2la!$er student mem ers of the clinics from representing as attorne.s an$ part$ the clinic has solicited o 4mall impact ecause can still represent those clients that !ere not solicited $ the clinic o 9ajor difference' these are not licensed mem ers of the ar. 84: can o#ersee the non2 attorne$s o This is an educational program that 84: permits and could terminate at !ill o 6ational asis test' this is consistent !ith 84:"s goal of discouraging solicitation o 4till fulfils goals of pro#iding legal representation for poor 8ouisianians and pro#iding educational opportunities to la! students. ;ie!point .iscrimination and 6etaliation' 7laintiffs allege that political and usiness interests pressured the court into enacting 6ule << o The 4:-T(4 has ruled $ou can consider moti#e for cases in#ol#ing the Esta lishment :lause or the termination of pu lic emplo$ees ecause of protected speech. o 3/A in this case ecause 6ule << does not create a forum for speech and does not exclude an$ speaker or prohi it or punish Me do not ha#e to in#estigate the moti#ation underl$ing e#er$ go#ernmental decision for #ie!point neutralit$. o /ere% 84: is not a speaker and there is no go#ernment message that the clinics are rela$ing to clients. The$ are not attempting to transmit information pertaining to their o!n program. /o!e#er% the court is not tr$ing to sa$ that if the state funds or supports a program it gi#es the go#ernment the right to restrict the rights of program participants The 84: ma$ ha#e ga#e in to some pressure ut does not transform 6ule << into unconstitutional action 6ule << !ill produce no legall$ significant chilling effect on the expressi#e speech of an$ of the 7laintiffs

4ome of the client organiLations ma$ find it more difficult to qualif$ for clinic representation. &ut this is suppressi#e onl$ compared to earlier #ersion of 6ule <<Rnot unconstitutional. 1t has reduced the a#aila ilit$ ut has not stamped out. The 84: did not need to allo! unlicensed students to practice and could end the program at an$ time for an$ reason. Thus% students ha#e no right to practice% it is a pri#ilege.

Bo. Scouts v. $ale http'//en.!ikipedia.org/!iki/&o$_4couts_of_America_#._.ale 5acts' Ga$ 4cout 8eader has mem ership re#oked upon coming out of the closet. 1ssue' 4:-T(4' !here does the line et!een pu lic and pri#ate resideN A: is the group an -e;pressi e association. or an -intimate associationD. and the court finds the &oy 4couts to be an -e;pressi e association. /olding' A pri#ate organiLation is allo!ed% under certain criteria% to exclude a person from mem ership through their 5irst Amendment right to freedom of association in spite of state antidiscrimination la!s 4:-T(4' The group must engage in some form of expression and then% !hat is the core messageN o 5actors' doesn"t need to e ad#ocac$% organiLed around a particular message and there needs to e a core agreement though it need not e unanimous .issent' if not unanimous% ho! do $ou kno! !hat core message isN /o! to distinguish from Ba$ceeN o The court sa$s that including !omen !ill not su stantiall$ and materiall$ alter the message of the group. 3ot so in .ale. 4imilar to /urle$ o Generall$% the :ourt ruled that pri#ate organiLations% e#en if the$ !ere planning on and had permits for a pu lic demonstration% !ere permitted to exclude groups if those groups presented a message contrar$ to the one the organiLing group !anted to con#e$. Regents o+ * ich v. E0ing (4:-T(4 CDZ,) 5acts' E!ing is enrolled in 1nterflex% a program that allo!s student to complete oth undergrad and medical degree !ithin six $ears. 6equirement for last t!o $ears is that the student pass 3&9E 7art 1 examination. 7amphlet $ the school sa$s that )e#er$thing possi le is done to keep qualified medical students in 9edical 4chool. This e#en extends to taking and passing 3ational &oard Exams. 4hould a student fail either part of the 3ational &oards% an opportunit$ is pro#ided to make up the failure in a second exam.* The uni#ersit$ is kno!n to ha#e pro#ided a num er of students the opportunit$ to retake the 3&9E examination% and some ha#e e#en retaken it more than once. E!ing is una le to pass the 3&9E exam the first time% scoring G+, (required +>,) and failing fi#e of the se#en su ject parts of the examination. 7romotion and 6e#ie! &oard re#ie!s se#eral students including E!ing and unanimousl$ #ote to ex him out of the program. E!ing su mits a !ritten request at !hich the &oard reconsiders and affirms its decision. E!ing !as allo!ed to appear and e heard prior to this decision. E!ing appeals the decision to the Executi#e :ommittee of the 9edical 4chool that unanimousl$ appro#es a motion to den$ his appeal for lea#e of a sence status that !ould allo! him to retake the 3&9E exam. E!ing appears t!o more times efore the Executi#e &oard% turned do!n oth times regarding readmission. 5iles suit in (.4. .ist. :ourt of E... 9ichigan. 8o!er court fa#ors the (ni#ersit$. Arguments' E!ing argues o (nder state la!% uni#ersit$"s actions are a reach of O and promissor$ estoppel ars it from acting o (nder federal la!% E!ing contends that he has a propert$ interest in eing enrolled !ithin the program and dismissal #iolates his su stanti#e due process rights under C> th amendment.

You let ?eo?le 0ho 0ere similarl. situated to me retake the test& multi?le times F 0h. am I being treated soo ?oorl./ Holding: you were not similarly situated # you too+ more time and did worse 1ssue' Mere the student"s constitutional rights #iolated (depri#ation of propert$ !ithout due process) !hen the uni#ersit$ refused to let him retake an exam contrar$ to past uni#ersit$ practices% thus constituting ar itrar$ state actionN /olding' 3o. The court is limited in its re#ie! of academic decisions of pu lic educational institutions under the su stanti#e due process of the C>th amendment and 0ill not override +acult. decisions 3unless it is such a substantial de?arture +rom acce?ted academic norms as to demonstrate that the ?erson or committee res?onsible did not actuall. eBercise ?ro+essional Eudgment4 A2T5CE THE /EFE(EACE T2 THE 5A4T5T%T52A Anal$sis' 5ederal courts ha#e the authorit$ to re#ie! the decisions of pu lic educational institutions !hen the issue is of su stanti#e due process E#en if the court #ie!s E!ing has ha#ing a propert$ interest that gi#es him right to su stanti#e due process% there is no e#idence that the uni#ersit$"s actions !ere ar itrar$ A constitutional right !ould onl$ protect E!ing )from ar itrar$ dismissal*Rhas to sho! that the uni#ersit$ )misjudged his fitness to remain a student in the 1nteflex program* :ourt' the record sho!s that the uni#ersit$ took into consideration his entire academic record. The 6e#ie! &oard looked at his progress throughout and noted that he had trou le from the get2go% ha#ing to take lighter class loads% incompletes% makeup exams% arel$ passing grades% etc. :ourt notes that !hen asked to re#ie! academic decisions% it !ill gi#e deference to the )facult$"s professional judgment* 4ee standard abo e 6estraints on judicial re#ie! of academic decisions' o 4u stanti#e due process isn"t outlined% so the court is !ar$ on entrenching itself into academic affairs through this #enue o :ourt is mindful of academic freedom% a#oiding the intrusion into state/local educational institutions. 9ore fit for professionals to decide than the courts in regards to the multitude of academic decisions that are made and etter understood $ academia. 1n sum% court #ie!s judicial ranch as eing a )narro! a#enue* !hen it comes to the re#ie! of academic decisions :oncurring (7o!ell) The majorit$ sa$s that it"s kind of sketch of E!ing to claim a propert$ interest ()du ious at est*) 4hould ha#e looked closer to figure out !hether this could e#en come under the su stanti#e due process clause 7rotection under su stanti#e due process requires consideration of the claim )against a ackground of :onstitutional purposes% as the$ ha#e een rationall$ percei#ed and historicall$ de#eloped.* The student !ants his continued enrollment to e seen as a constitutionall$ protected interest% ut the concurring opinion disagrees. This is not a fundamental interest and thus not a!arded the protection of su stantial due process. -#erall% agrees !ith majorit$ opinion of deference to the academics and uni#ersit$ authorities. Budicial re#ie! is )rarel$ appropriate* !hen there are )orderl$ administrati#e procedures* in place.

:omments/ :lassnotes' C. This case !as also mentioned !hen !e discussed grading. G. 7rocedural due process a. 7ropert$% li ert$% or life interests that are taken a!a$ and guaranteed procedural due process.

. 4tudent in this case claims that it is a propert$ interest /c it takes a!a$ his status as a doctor
in the future% takes a!a$ his opportunit$ to !ork in the future

+. This is a good case for the school to argue this point /c it is dealing !ith the medical school and so
the$ can reach the pu lic in sa$ing that the pu lic !ould !ant a good doctor. Mant onl$ qualified applicants. >. Mh$ didn"t the$ just let him take the test againN Board o+ )urators o+ the *niversit. o+ issouri v. Horo0it1 5acts' 6espondent !as a medical student on rotational units% and is e#aluated on a periodic asis. 5acult$ mem ers expressed dissatisfaction !ith her clinical performance during her pediatrics rotation (lo!er than a#erage% erratic attendance% and disregard for personal h$giene)% ut the :ouncil on E#aluation recommended that she e ad#anced to her final $ear on a pro ationar$ asis After further dissatisfaction% and the$ found that she !ould not qualif$ for graduation in Bune of that $ear. 4he also !ould e dropped as a student a sent )radical impro#ement.* To appeal this decision the student could take examinations under the super#ision of Q practicing ph$sicians o G recommended she graduate on schedule o G recommended she e dropped immediatel$ o + recommended she continue on pro ation T!o more rotations !ith lo! marks :ouncil recommends that she e dropped for failure to meet academic standards. &oth :oordinating :ommittee and .ean appro#e. 4he appealed to the 7ro#ost !ho sustained the decision 3o! she sues under >G (.4.:. ^CDZ+ /olding' (C) the procedures leading to respondent"s dismissal for academic deficiencies% under !hich respondent !as full$ informed of facult$ dissatisfaction !ith her clinical progress and the consequent threat to respondent"s graduation and continued enrollment% did not iolate the /ue Process Clause of the Fourteenth Amendment. /ismissals for academic 0as opposed to disciplinary1 cause do not necessitate a hearing before the school)s decision ma+ing body. (G) though respondent contends that the case should e remanded to the :ourt of Appeals for consideration of her claim of depri#ation of su stanti#e due process% this case% as the .istrict :ourt correctl$ concluded" re eals no showing of arbitrariness or capriciousness that would warrant such a disposition e en if it were deemed appropriate for courts to re iew under an arbitrariness standard an academic decision of a public educational institution o 4ince no sho!ing of ar itrariness or capriciousness% she is not entitled to remand for her claim of su stanti#e due process. o The :ourt finds that the 4chool"s choice !as careful and deli erate% and this is sufficient to satisf$ .ue 7rocess. Anal$sis :laim' depri#ed of procedural due process 8egal 1ssue' Mhat procedures must e accorded to a student at a state educational institution !hose dismissal ma$ constitute a depri#ation of )li ert$* or )propert$* !ithin the meaning of the C> th Amendment. o 9ust sho! that 9edical 4chool seat !as a )propert$* interest recogniLed $ 9- state la! o 1nstead% she tried to argue that her dismissal depri#ed her of )li ert$* $ impairing her opportunities to continue her medical education or to return to emplo$ment in a medicall$ related field The :ourt of Appeals follo!ed the precedent of Bisho? v. 'ood% and upheld the dismissal of a policeman !ithout a hearing.

o .ismissal (!ith no pu lic disclosure) does not gi#e a stigma infringing li ert$ ecause it does
not impair his good name% reputation% honor% or integrit$

o (pheld Board o+ Regents v. Roth% !here the$ said that although a dismissed untenured
college professor might make him less attracti#e it does not den$ him li ert$. 4:-T(4 does not e#en determine if there is a li ert$/propert$ interest. 1nstead the$ just find that if !e assume there !as such an interest% the student !as still afforded her C> th Amendment minimum. (ses the precedent of Goss v. Lo?e1 !hich finds that the student must e gi#en oral or !ritten notice of the charges against him and% if he denies them% an explanation of the e#idence the authorities ha#e and an opportunit$ to present his side of the stor$. o This does not ha#e to e a formal hearing (as the :ourt of Appeals elie#ed)% can e flexi le process for academic dismissal. o /o!e#er% if it !ere dismissal !ere ased on the student"s conduct% needs more stringent requirements. Barnard v. Inhabitants o+ ShelburneR9isconduct is #er$ different from excellence in studies. GossRdealt !ith student suspensions for disciplinar$ reasons% similar to traditional judicial and administrati#e fact finding% that is !h$ there !as a hearing. &ut e#en this opinion stopped short of requiring a formal hearing ecause the$ feared it !ould make suspension too costl$ to use as a regular disciplinar$ tool. .isciplinar$ decisions should e in hearings ecause the$ are like findings of factR like a courtroom Academic decisions are more sub$ecti e and e aluati e" they re@uire e;pert e aluation of cumulati e informationEunli+e" disciplinary decisions Educational process is a continuing relationship et!een facult$ and students. 5acult$ must e educator% ad#iser% friend% and at times% parent2su stitute. Goss v. Lo?e1. The 6espondent"s other claim is in regards to su stanti#e due process that )state institutions can e enjoined if sho!n to e clearl$ ar itrar$ or capricious.* (this is mere dicta from ahavongsanan v. Hall). The 4upreme :ourt stated that e#en if the$ follo!ed this standard the$ found no e#idence of ar itrariness or capriciousness

7-ME88R:oncurring 6espondent !as dismissed for academic deficiencies not for personal conduct. 1n these circumstances% she !as accorded due process. 5ocus of discussions !as on student"s competence as a ph$sician :riticiLes 9arshall"s opinion !hich descri es respondent"s dismissal as largel$ ased on personal conduct like that in Goss v. Lo?e1R7o!ell sa$s this is not ased on personal conduct 7o!ell defers to the .istrict :ourt"s findings !hich found that the$ !ere ased on academic decisions 4he !as deficient in her clinical !ork as she !as proficient in her ) ook2learning* 1n a footnote% 7o!ell notes that misconduct requires a factual determination as to !hether or not the conduct took place. The accurac$ of that determination is grounded in procedural due process. -n the other hand% an academic determination requires the factual judgment (!hether or not the student ga#e certain ans!ers) ut also requires su jecti#e expert e#aluations as to !hether or not the$ satisf$ academic competence% !hich do not require the same procedural safeguards. /e also notes that )(ni#ersit$ faculties must ha#e the !idest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation.* M/1TE2:oncurring

/e does not agree !ith the reasoning that ecause this is an )academic dismissal* there is no hearing of an$ kind required. Those !ho are eing dismissed should at minimum e entitled to the reasons for the dismissal and the opportunit$ to personall$ state their side of the stor$.

9A64/A88R:oncurring in part and .issenting in part .id not agree !ith the :ourt"s suggestion that the respondent !as entitled to e#en fe!er procedural protections than she recei#ed. .id not elie#e that there !as a necessar$ characteriLation of academic #. disciplinar$ 5eels the court should remand on the su stanti#e due process claims Goss standards metRse#eral notices and explanations% and man$ opportunities to present her side of the stor$ 9arshall disagrees that far less than this standard is adequate due process. 9arshall follo!s the athe0s v. Eldridge frame!ork for due process' o (C) pri#ate interest that !ill e affected $ the official action 1n this case% her medical degree and a possi le jo offer% damaged chances of !orking in the medical field Budge 5riendl$' )!hen the 4tate seeks Jto depri#e a person of a !a$ of life to !hich she has de#oted $ears of preparation and on !hich sheY has come to rel$%" it should e required first to pro#ide a Jhigh le#el of procedural protection." o (G) the risk of an erroneous depri#ation of such interest through the procedures used% and the pro a le #alue% if an$% of additional or su stitute procedural safeguards0 and 1n this case% possi ilit$ of some error% not )sharpl$ focused* or )easil$ documented as to her personal h$giene or patient and peer rapport o (+) the Go#ernment"s interest% including the function in#ol#ed and the fiscal and administrati#e urdens that the additional or su stitute procedural requirement !ould entail Mith an informal method there is some possi ilit$ of error% should e afforded more procedural protections. /o!e#er% in this factual circumstance% it !as ok and afforded her as much protection as due process requires 1rrele#ant question to ask if her inadequacies !ere purel$ academic reasons. 4hould not focus on la els% should focus on due process concerns. 4hould find a procedure that is fair to the student and the school% characteriLation of the dismissal is not important. &8A:O9(3 and &6E33A3R:oncurring in part and .issenting in part 1n this case the respondent recei#ed all procedural process required under the C> th Amendment. .o not need to address the le#el of procedural protection required $ the C> th Amendment in graduate2school dismissals (nnecessar$ to make distinction et!een academic and disciplinar$ reasons. 6emand for decision on su stanti#e due process claims. :omments/ :lassnotes 6. Horo0it1 a. Academic conduct #. 7ersonal conduct/non2academic conduct C) The court doesn"t like to touch academic conduct /c it is so su jecti#e that the court !ants to lea#e it to the experts. G) :ontext is important in e#aluating the conduct

G. .o students ha#e academic freedomN a. Fes. .o get some lee!a$ in the classroom. . AA(7 has fe! control of students since the$ are a out facult$ concerns unless the$ are
paired !ith facult$ concerns +. 4tudent issues a. :omputers% technolog$% pri#ac$221ncreasing num er of disputes et!een and among students% institution and outside entities (technolog$ related% hacking% pranks% porn% etc.) . 6elationship /! students (housing issues% relationships% etc.) c. 4anctions C) 7ro ation% etc. d. 4tudent speech and protest e. 4tudent organiLations and ma$ ha#e state la!s that appl$ to these organiLations (i.e. haLing) >. 7rocedural due processes a. + areas' C) 8ife G) 8i ert$ C. /appen in student relations most in regards to a 6A !ho ars the student from coming into the room% puts them some!here% 6A takes the student and takes action of ph$sical restraint. +) 7ropert$ C. 9ust e some t$pe of depri#ation of a legitimate claim of entitlement . All of these cases are a out uni#ersit$ not pro#iding a sufficient process )LS v. artine1 :84' safe space% core message inconsistent !/ all student participation% freedom to associate% freedom from discrimination /astings' All comers polic$% educational mission oFarner' All comers might e tough to sustain This is different than $ale ecause the$ are pu licl$ funded and !ant pu lic funds o*ich' $ou don"t ha#e to take e#er$one% $ou can e mission ased% ut $ou cant exclude ased on status -utla!s' :84 isn"t special% all organiLations must include all students

Mhen !e allo! gender discrimination &$ la! Title 1< /ealth and safet$ reasons Artistic expression /isabilities A3-T/E6 &A8A3:13G A:T -5 61G/T4 A3. 13TE6E4T4 7rimar$ la!s that protect students (!e"ll focus on students toda$0 don"t forget that facult$ and staff are also protected under discrimination statutes applica le to emplo$ees)' 4ection ,=> of the 6eha ilitation Act of CDQ+ (4ection ,=>) 8ike Title ;1 and Title 1<% this statute applies to all colleges and uni#ersities that recei#e federal financial assistance.

Americans !ith .isa ilities Act (A.A) of CDD= Applies to three primar$ groups (emplo$ers% go#ernment entities such as state uni#ersities% and pri#ate entities that ser#e the pu lic). &oth statutes prohi it discrimination against indi#iduals !ith current disa ilities% indi#iduals elie#ed to e ()regarded as*) disa led% and indi#iduals !ith a record of a disa ilit$. These statutes require that students !ith disa ilities ha#e equal access to information and to the a#enues of communication (e.g.% !e sites% distance education resources% etc.) 4tudents are expected to meet the )essential* )academic* and )technical* standards of the college or uni#ersit$% !ith or !ithout reasona le accommodations. 7ersons !hose disa ilities manifest a )direct threat* to the health and safet$ of themsel#es or others ma$ e excluded from an educational program. Gossman !rticle Mhat is a disa ilit$N A ph$sical or mental impairment that su stantiall$ limits a major life acti#it$. Mhat is a reasona le accommodationN (ni#ersities must pro#ide )reasona le accommodations* ()academic adjustments and reasona le modifications%* )auxiliar$ aids and ser#ices*) to students !ith disa ilities to allo! them to participate full$ in educational programs and acti#ities. o Academic adjustments' classroom and testing modifications (e.g.% extra time on examinations0 moderatel$ reduced course loads% limited lea#es of a sence% classroom modifications) o Auxiliar$ aids and ser#ices' practices that create access to information for persons !ith sensor$ impairments (e.g.% signers or readers) 6easons !h$ schools can den$ requests for accommodations' 1f it represents a fundamental alteration in the nature of the academic program (e.g.% excusing students from la orator$ requirements). 1f a less costl$ ut effecti#e alternati#e is a#aila le. o 1nstitution need not incur an undue economic or administrati#e urden in accommodating students !ith disa ilities o 1t need not ear the expense of personal ser#ices ( ut it must allo! students to use personal attendants !hen needed). Mhat is an )essential* academic or technical standardN 1ssue of ho! much deference schools !ill get an educational judgment (note earlier discussions a out deference to educational judgments $ courts). Fou earn deference if $ou ha#e thorough% !ell2 documented% consistentl$ applied policies and procedures in place. 1t helps if schools ha#e !ell2de#eloped% interacti#e procedures for considering and implementing requests (and properl$ trained and qualified indi#iduals to re#ie! requests). W 1ncreased attention to issues related to indi#iduals !ith disa ilities has forced schools to identif$ !hat is reall$ essential #. !hat is simpl$ con#enient or traditional (similar to re#isiting tenure and promotion requirements in light of discrimination issues related to race% gender% etc.). The 1nteracti#e 7rocess

3ote that students at the postsecondar$ le#el should identif$ that the$ need help o 4ee :hronicle articleRand institutions need to make clear ho! the$ can request such help (e.g.% to !hom can the$ go to request accommodations). 4tudents ordinaril$ then document that the$ ha#e a disa ilit$ and need an accommodation (documentation ma$ need to e periodicall$ updated% depending on the nature of the disa ilit$). o 4tudents ear the costs of o taining documentation. 9an$ difficult cases arise in clinical settings% especiall$ in health and medical fields. :ertain t$pes of disa ilities also lead to disputes and litigation (e.g.% A./.% learning disorders and other t$pes of mental disorders% chronic fatigue s$ndrome). This is an area !here precedents !ill not e cast in stone' o 1ndi#idual circumstances and disa ilities differ. o Technolog$ can change !hat"s possi le o#er time.

Suestion' Fou are asked $ $our uni#ersit$"s medical school to clarif$ the polic$ and procedures for considering requests for #arious accommodations (including requests for exemptions from some program requirements) from students !ith disa ilities. Mhat !ould $ou recommend% and !h$N 1dentif$ing essential program requirements #. other% non2essential elements 7a$ attention to accreditation requirements and other external standards 6esponsi ilit$ for disclosure of disa ilit$% and to !hom (remem er that )magic !ords* are not required in such disclosures) Anal$sis of t$pes of accommodations a#aila le on an indi#idualiLed asis Southeastern )ommunit. )ollege v. $avis D67G7 9 5acts' 5irst case to interpret ^ ,=>. 8icensed practical nurse !as denied admission to college"s nursing program ecause of her hearing disa ilit$ 7rocedure' Action under of the :6A of CZQC and ^ ,=> of 6eha ilitation Act of CDQ+ also denial of equal protection and due process 4he had an inter#ie! from a mem er of the nursing facult$% she had difficult$ understanding the questions and responded that she depended on a hearing aid. 1ssue' !hether ^,=> of the 6eha ilitation Act of CDQ+% !hich prohi its discrimination against an )other!ise qualified handicapped indi#idual* in federall$ funded programs )solel$ $ reason of his handicap%* for ids professional schools from imposing ph$sical qualifications for admission to their clinical training programs. /olding: the CC has determined that the student is not @ualified because there is no accommodation they could gi e that would not fundamentally change the program. 4:-T(4' an )other!ise qualified handicapped person* is one !ho is qualified in spite of (rather than except for) his disa ilit$. o 4ince an applicant"s disa ilit$ is therefore rele#ant to his or her qualification for a specific program ^ ,=> does not preclude a college or (ni from imposing )reasona le ph$sical qualifications* on admission% !here such qualifications are necessar$ for participation in the school"s program. 1mpact of this case is limited gi#en the narro! and specific factual context in !hich the case arose' o 7rofessional% clinical school0 not (G o 4chool sho!ed that it !as necessar$ to understand directions !/out rel$ing on reading lips. 4:: consulted !ith 9ar$ 9c6ee% Executi#e .irector of the 3orth :arolina &oard of 3ursing. 4he recommended that respondent not e admitted to the nursing programRunsafe for her to ecome a nurse or participate safel$ in the normal clinical training program 6espondent !as denied and requested reconsiderationRthe entire nursing staff of 4:: assem led and again consulted !ith 9c6eeRthe$ confirm the prior decision

The court concluded that there are man$ situations in !hich all doctors and nurses !ear surgical masks !hich !ould make lip reading impossi leRsome instances !here can onl$ get the nurse"s attention through #ocal means

o Too much danger to future patients

The Act does not compel institutions to make su stantial modifications to their programs to allo! disa led persons to participate 1t is not permissi le to assume that mere possession of a handicap is permissi le grounds for assuming an ina ilit$ to function in a particular context .epartment of /EM sa$s a qualified handicapped person is' a person !ho meets the academic and technical standards requisite to admission or participation in the school"s program or acti#it$

o Technical refers to all nonacademic admissions criteria that are essential to the program o 8egitimate ph$sical qualifications ma$ e essential to participation in particular programs
The a ilit$ to understand speech !ithout reliance on lipreading is necessar$ for patient safet$ during the clinical phase of 4::"s program 6espondent argued that 4:: had to take affirmati#e action to dispense !ith the need for oral communicationRpro#ide auxiliar$ aids such as sign2language interpreters% and indi#idual super#ision

o The :ourt held that an$ accommodations 4:: !ould ha#e to make !ould raise dou ts a out
its #alidit$% and !ould impose too man$ o ligations% not outlined in ^,=>

^,=C( ) go#erns the emplo$ment of handicapped indi#iduals $ the 5ederal Go#ernment% requires each federal agenc$ to su mit )an affirmati#e action program plan for the hiring% placement% and ad#ancement of handicapped indi#idualsY*R)these plans shall include a description of the extend to !hich and methods !here $ the special needs of handicapped emplo$ees are eing met.* ^,=+(a) go#erns the hiring $ federal contractors% requires emplo$ers to )take affirmati#e action to emplo$ and ad#ance in emplo$ment qualified handicapped indi#iduals.* -n the other hand% state agencies are just encouraged to adopt these policies and proceduresRthe$ do not need to make affirmati#e steps 1n this case% 4::"s un!illingness to make major adjustments to its nursing program is not discrimination. 7urpose is to train persons !ho could ser#e the nursing profession in all customar$ !a$s 1f the$ made accommodations it !ould su stantiall$ lo!er the program

'.nne v. Tu+ts *niversit. School o+ edicine D6st )ir. 67769 5acts' M$nne !as dismissed from the med school after he failed to complete the C st $ear program% ecause of his d$slexia. 4chool refused to modif$ the testing methods to accommodate him. M$nne had lo!er 9:AT and G7A than most students ut !as let in under the affirmati#e action program. /e complained a out multiple choice testingRmore success in practicum% la orator$ and applied sections.

5ailed Z/C, courses his first $earRthe school polic$ is to pro#ide dismissal for failing , courses. 1n sum% the school granted him numerous opportunities to succeed. 1n fact it !ent to G6EAT lengths to help him. 4ee outline C'. /olding' )The point is that Tufts% after undertaking a diligent assessment of the a#aila le options% felt itself o ligated to make )a professional% academic judgment that a reasona le accommodation !as not a#aila le.* There needs to a conscious thoughtful process by the uni ersity" which in this case there was. Thus" they meet re@uirements of the (ehabilitation Act. :ey: the institution can select its own standards # so long as they are reasonable" thoughtful and deliberate. Ex ante is etter than post ante To determine if an indi#idual is )other!ise qualified* must look at more than the indi#idual"s a ilit$ to meet present re@uirements o 6elies on S)) v. $avisR)an other!ise qualified person is one !ho is a le to meet all of a program"s requirements in spite of his handicap*

-nl$ a su stantial change to the program !ould accommodate plaintiffRdo not require so fundamental an alteration Training for all normal roles of a registered nurse U legitimate academic polic$

There is still a respect/deference to academic decision makingRdeference to institution

o $oe v. Ne0 York *niversit.Rgi#e deference to the uni#ersit$ in determining if the plaintiff"s
handicap rele#ant to its reasona le qualifications for admission and that there existed a significant risk that the disorder !ould reoccur

o $oe v. Region 6H ental HealthA ental Retardation )omm2n Ra former ps$chiatric !orker
!ith acute ps$chiatric pro lems challenged her dismissal. The court ga#e reasona le deference to the center as to !hether there !as a su stantial% reasona le asis for its decision

o Gi#e reasona le difference to the grantee"s o!n determination of the restrictions

reasona leness

o Strathie v. $e?artment o+ Trans?ortationRsome measure of deference% ut rejects a ) road

judicial deference resem ling that associated !ith the Jrational asis" test ?!hich@ !ould su stantiall$ undermine :ongress" intentY that stereot$pes or generaliLations not den$ handicapped indi#iduals equal access to federall$2funded programs.*

Academic institution has the o ligation to seek suita le means of reasona l$ accommodating a handicapped person and to su mit factual record indicating that it conscientiousl$ carried out this statutor$ o ligationRgenerall$ al!a$s a legal issue% ut if essential facts are genuinel$ disputed then might need further fact finding

o The$ must su mit cost and effect on academic program and sho! that the$ came to a
rationall$ justifia le conclusionRother!ise that it !ould lead to lo!er academic standards or su stantial program alteration

Generall$ reasona le accommodation is a legal question

Guckenberger v. Boston *niversit. D$. ass. 677G9 5acts' This !as the third time a case had een rought against &( on this same issue. :lass action $ students !ith attention deficit h$peracti#it$ disorder (A./.). The$ make allegations of disa ilit$ discrimination' Esta lishing unreasona le% o#erl$2 urdensome eligi ilit$ criteria for qualif$ing as a disa led student 5ailing to pro#ide reasona le procedures for e#aluation and re#ie! of a student"s request for accommodations 1nstituting an across2the2 oard polic$ precluding course su stitutions in foreign language and mathematics /olding' :ourt examined the #arious processes in place% noted that course su stitution in foreign language for students !ith demonstrated language disa ilities !as reasona le modification% and that the (ni#ersit$ had deli erated and seriousl$ contemplated the issue0 ut course su stitution in math for students suffering from d$scalculia !as not reasona le modification. :ourt !ants to see )reasoned deli eration* o )4o long as the institutions rationall$% !/out pretext% exercises its deli erate professional judgment not to permit course su stitutions for an academic requirement% the A.A does not authoriLe the courts to inter#ene e#en if a majorit$ of other similar academic institutions disafree. 6elies hea#il$ on '.nne Suestion' Fou are asked to de#elop a polic$ for $our uni#ersit$ on the timing and criteria for tenure consideration for facult$ !ith disa ilities !ho ask for #arious t$pes of accommodations. Mhat !ould $ou recommend% and !h$N 4ome 1ssues to :onsider' 1dentif$ing essential functions of the jo (teaching% research% ser#ice ut ho! much latitude is there in each of these categories to meet the requirements in a #ariet$ of !a$sN) Mhen disa ilities are disclosed% and to !hom Appeals mechanism 6educed courseload/!orkload -ther t$pes of accommodations 5airness to other groups on the tenure clock (e.g.% facult$ !ith $oung children) (esearch Academic 5reedom in 6esearch (remem er CD>= 4tatement) :ontro#ersies can arise a out the su ject matter of research% its purposes (pursuit of kno!ledge% or to help certain interests)% and sources of funding. 5unding' 9uch federal and state go#ernment support has dried up. :orporate support is gro!ing. Suestions' Mhat pressures can arise !hen research is funded $ corporationsN (e.g.% to acco or pharmaceutical companies) o &ias o 6esults Mhat should facult$ and uni#ersities do a out restrictions on release of data% pu lication of results% etc.N 4hould !e e concerned !hen facult$ mem ers ha#e a financial interest in the su ject matter eing studiedN (e.g.% +>] of articles in recent sur#e$ had one or more authors !ith such interests)

o :onflicts of interest are tracked $ uni#ersit$ committees. There are some go#ernment
regulations% ut the$"re often #ague and limited. 7rotections for /uman 4u jects' 16&s (institutional re#ie! oards) no! re#ie! #irtuall$ all research in#ol#ing human su jects (e#en !hen scholars inter#ie! people). 3ote the impact on student research projects during normal academic semesters. In re )usumano v. icroso+t D6st )ir. 677>9 5acts' 9icrosoft tried to compel production of research (the professors" notes% tape recordings and transcripts of inter#ie!s% and correspondence !ith inter#ie! su jects) compiled $ academic researchers from inter#ie!s of emplo$ees of 3etscape (a competitor of 9icrosoft)% claiming it needed this information to support its defense that 3etscape lost market share due to managerial mistakes. The info !as the asis for a ook on 3etscape.% and the professors had signed confidentialit$ papers. The 7rofs mo#ed to squash the motion. /olding' )(sing a alancing test the court found 9icrosoft could get the info from the indi#iduals themsel#es. The researchers had a su stantial interest in keeping su poenaed information confidential% and that Cst Amendment issues leaned that !a$ as !ell. Thus 9icrosoft need of info #. researchers interest in preser#ing confidentialit$ is the proper standard. )Academicians engaged in pre2pu lication research should e accorded protection commensurate to that !hich the la! pro#ides for journalists.* The information is rele#ant and potentiall$ useful to 9icrosoft (it meets the rele#ance and need standards)% ut 9icrosoft could get this information through other means. :hilling effect' These researchers"% and future researchers efforts !ould e se#erel$ impeded and undermined if the court undercut this confidentialit$. :ourt noted the promise of confidentialit$ in their inter#ie! protocol% plus the nondisclosure agreement !ith the corporate entit$ eing studied. The researchers !ere not parties to the litigation% so this demand !ould create a major urden on non2 parties. 3ote parallel to requests to AA(7 for its records in case in#estigations% !here litigation follo!ed. :ourt used a alancing test here% !eighing the rights of the #arious parties/indi#iduals in#ol#ed. Suestion' Mhen might it e appropriate to e a le to su poena research recordsN Mhat a out student papersN Suestion' 4hould academics e accorded the same rights as journalists in protecting sourcesN Mh$ or !h$ notN Suestion' Mhat are the interests hereN 3ote' pu lic considerations efficient administration of justice% incenti#es for research on contro#ersial topics% a ilit$ of researchers to unco#er truth. #elten D<rinceton *.9 5acts' 7rofessor !as doing research on #ulnera ilities in securit$ s$stems for cop$righted !orks. 61AA threatened him and his team% under .9:A (it !as illegal to circum#ent cop$right control measures)% if the$ pu lished their paper. 5elten% the professor and lead researcher e#entuall$ taking the mone$ and disclosing the info to the go#ernment. /olding' 4uit !as dropped !hen 61AA and go#ernment ga#e assurances the$ !ould not sue in exchange for the information

3ote' A:8( lost a facial challenge to the .9:A (a researcher !anted to re#erse2engineer some filtering soft!are% circum#ent its encr$ption mechanism% and e#aluate its effecti#eness). Bron+enbrenner )ase 5acts' :ornell 7rofessor Oate &ronfen renner (.irector of 8a or Education 6esearch at :ornell"s 4chool of 1ndustrial and 8a or 6elations) ga#e testimon$ at a to!n2hall meeting% called $ se#eral mem ers of :ongress to discuss proposed legislation that !ould ar major la or la! #iolators from o taining federal grants. 4he reported on confidential research she conducted on anti2union tactics. 1n her remarks% she commented on the unfair la or practices of certain emplo$ers% including &e#erl$ Enterprises (the nation"s largest nursing home operator)% to cur organiLing efforts. 4he denounced &e#erl$ as )one of the nation"s most notorious la or la! #iolators.* (A CDD, GA- report had identified &e#erl$ as one of C, companies that !ere )more serious la or la! #iolators.*) 4he !as not paid or an$thing. :ompara le to her logging R#oicing her #ie!s. &e#erl$ sued &ronfen renner in federal court for defamation. :onclusion' The (ni#ersit$% :ornell% sa$s it !ill support her% e#en though she !as acting independentl$ (7otential for pro lem if next facult$ !ho acts like so is unpopular) 9essage' .on"t mess !/ our facult$% she has done her research and !e !ill stand $ her. :ornell defended her under its defense and indemnification polic$ (noting that she had een performing a pu lic ser#ice $ sharing results of her research in this forum% and that this la!suit threatens fundamental #alues of an academic institution). 4ince to !in% the compan$ !ould ha#e to pro#e that the statements she made !ere false and that she made them maliciousl$ !ith the kno!ledge that the$ !ere false% &e#erl$ drops the case. Suestions' Mhat protections can !e pro#ide against such suitsN Mhat role should the (ni#ersit$ pla$ here% if an$% in a professor"s defenseN To !hat extent do the (ni#ersit$"s interests coincide !ith the facult$ mem er"sN &ig emerging issues' 6estrictions on participation of foreign nationals in some t$pes of research (e.g.% 91T/.epartment of .efense contracts) 7re2pu lication re#ie! clauses (!hen might the$ e legitimateN) o 7ro lem ecause the (ni has po!er% can sa$ )!ell% !e !ill find someone !ho !ill consent thenY* Pri acy and 4ecurity in the /igital Age Pri acy (!e !ant data to e pri#ate)% thus !e must create some 4ecurity% ut !e still !ant to use it. Three@0a. tension. S?ecial !!*< )ommittee Academic 5reedom and 3ational 4ecurit$ &ackground C. :reation of 4pecial :ommittee on Academic 5reedom and 3ational 4ec. in a Time of :risis a. &$ the AA(7% asses the )implications for academic freedom and free inquir$ of a host of measures that the federal go#"t has adopted since D/CC* and others under consideration. . 1n past crisis% has taken the stand that academic freedom is part of the freedom that is eing fought forR$ou can"t curtail the ends of $our means. G. Go#"t techniques (domestic)' secrec$% sur#eillance% suppression

a. 9easures are necessar$ regarding militar$ info% guarding enem$"s actions and plans0 not
aiding $our enem$ (financiall$)0 4uch measures are accepta le. C) :rosses the line !hen $ou curtail info that is in the pu lic domain (records) and sur#eillance of la!ful acti#ities% suppression of political dissent. 3ot onl$ the go#"t ut pri#ate entities also ha#e een doing this under the guise of Jpatriotism" (i.e. :ampus Match) . 7ri#ate entities adopting censorship guidelines% etc. are protected under C st amendment for their actions/programsRsame thing that protects an$ one under freedom. Go#"t action is held to a different standard and not limited $ the la!ful ounds placed on pri#ate entities. +. Academic freedom can help and harm. a. Oeep info a out a toxin so that the enem$ can"t use it as a !eapon0 ut it could also impede scientific progress for greater good (cure% etc.) . To keep in mind% not gi#e up the freedom at the sound of alarm% not e#er$ h$pothetical% ut should in some instances. >. Go#"t claims of securit$ rationale should meet the follo!ing criteria' a. )Go#"t must demonstrate the particular threat to !hich the measure is intended to respond% not as a matter of fear% conjecture% or supposition% ut as a matter of fact* C) To note% no!here has it een said that D/CC !as aided $ intelligence failures. . )Go#"t must demonstrate ho! an$ proposed measure !ill effecti#el$ deal !ith a particular threat.* C) /as held up student #isas% targeting of foreign graduate students c. )Go#"t must sho! !h$ the desired result could not e reached $ means ha#ing a less significant impact on the exercise of our ci#il or academic li erties* C) Excessi#e monitoring should e accounted forRagenc$ !hich has the authorit$ to monitor an$one"s electronic communication. Anal$sis of (4A 7atriot Act C. 7assed $ :ongress in G==C% follo!ing D/CC. 7assed #er$ quickl$ and !ithout much de ate/deli eration. &asicall$ riding on the passions/heat of the moment follo!ing D/CC G. :riticism' doesn"t address ho! the D/CC attacks could ha#e een pre#ented% puts together the la!2 enforcement !ith intelligence acti#ities (!hich in the past led to illegal ci#il rights acti#ities ut !ith D/CC thought that more communication et!een the t!o !ould e helpful to com at instances of future terrorism)0 refraining the release of docs for pu lic disclosure !hich !as pre#iousl$ done through 5reedom of 1nformation Act (5-1A). +. Act and (ni#ersities' greater a ilit$ to gather info a out ppl (mem ers of the academic communit$). a. Affected #amil. Education Rights and <rivac. !ct' 7rotect confidential info a out students% no unauthoriLed disclosure. C) 7atriot Act' senior official in .-B can get court order to collect educational records thought rele#ant to in#estigation/prosecution of terrorism. 4tandard to get permission is #er$ #ague and doesn"t require student consent. 1nstitution not required to maintain records of .-B disclosures. . The Electronic )ommunication <rivac. !ct' )controlled the access of federal la!2 enforcement officials to stored electronic communications (email% #oice mail). 4earch !arrants required if stored in de#ice like ans!ering machines. C) 7atriot Act' 3o !iretap order required% ok to use search !arrants for #oice2mail messaging !hich had% in the past a greater standard of proof required for !iretapping (requires that other methods had failed) c. The #oreign Intelligence Surveillance !ct' 1n#estigates criminal acti#it$ thought of ha#ing een supported $ a )hostile foreign po!er*Rexempt from search and seiLure under > th

amendment and need to appl$ to the 5oreign 1ntell. 4ur#eillance :ourt. (suall$ ;7 $rl$ report to 4enate a out the requests. C) 7atriot Act' 1mpro#ed the reporting requirement ut )expanded reach of the 514A s$stem and a uilt2in gag order* :an"t ha#e record keeper of the institution disclose that records !ere asked for. d. -ther securit$ changes C) :riminaliLes the possession of io. Agent% toxin% or deli#er$ s$stem of a t$pe or in a quantit$ that under the circumstances is not reasona l$ justified $ a proph$lactic% protecti#e ona fide research% or other peaceful purpose* G) :ertain categories of persons can"t e in possession of iohaLards. +) 6egistration of e#er$ la that !orks !ith specific io. agents and ppl !ho ha#e access. >) 4tudent Exchange ;isitor 1nfo. 4$stem (4E;14)R!e 2 ased s$stem that tracks foreign students and scholars0 134 oked to create a data ase on foreign students in (4 colleges. 1mplementation 7ro lems on implementation. 8imits the ppl that uni#ersities can seek from foreign applications. 9a$ e addressed (pro s ma$ e not so ke$) if the go#"t had a more efficient re#ie! process. :riticism on status ased categoriesRppl of certain ackground not eing a le to handle specific material. :lassnotes C. 7ri#ac$ 4ecurit$ (sa ilit$ (triangle) a. 1f too pri#ate% can"t use0 if too secure% then can"t use it. . 1f not enough pri#ac$/securit$ than e#er$one can use it. G. 7ri#ac$% 7roduction% 6etention% .estruction (square !ith x to sho! ho! all relate) a. 7ri#ac$ rules that schools ha#e to compl$ !ith ut must produce if asked $ the emplo$er. . 6etain electronic records (statutes) pertaining to a matter $ou think that is likel$ to occur C) 4ome keep 7ri#ate (up) G) 7roduce if retain (side) +) .estruction (right) after a time +. 1f info is retained% then a su poena can e used to get to it. >. AA(7' 4ecret research is fundamentall$ opposed to the mission of an academ$. ,. AA(7' !ants the go#ernment a ilit$ to stop speeches to e curtailed a. To e more exact% the$ !ant 44 applied C) + conditions C. the secrec$ must e )necessar$* and )legitimate* G. Go#ernment must demonstrate ho! the program !ill deal !ith this threat +. 9ust sho! that this is the onl$ !a$ to curtail the speech 6easona le expectation of pri#ac$ 7ro !ith 7atriot Act C. 5orced to gi#e up info and e for idden to e disclosed G. 1t amended 5E67A a. &ernard' pro a l$ !asn"t necessar$% ut it facilitated disclosure (ni#ersit$ policies C. (ni#ersit$ could possi l$ just dump its records to keep them from eing touched G. (ni#ersit$ ma$ ha#e a polic$ of no pri#ac$.

5E67A C. The latest changes are seen in Hogan G. 3o pri#ate action in 5E67A +. /elps keep the student part of the info secret #elsher v. *niversit. o+ Evansville (1ll. 4up. :rt. G==C) 5acts' .efendant% after eing fired from the school% created e2mail accounts !hich contained the last name of these indi#iduals% the first letter of their first name and the letters H(E%H a common nickname for the (ni#ersit$ of E#ans#ille. The e2mail accounts !ere created in such a !a$ that recipients of e2mail from such accounts !ould elie#e the mail came from one of the indi#idual plaintiffs. .efendant also created a series of !e sites on !hich he posted articles he !rote% !hich contained comments critical of the indi#idual plaintiffs. .efendant thereafter sent e2mails from the e2mail accounts he had created in !hich he nominated the indi#idual plaintiffs for #arious academic positions !ith third parties. These e2 mails referred the prospecti#e emplo$ers to the !e sites defendant had created !hich% as stated a o#e% contained comments critical of the plaintiffs. 1ssue' 7laintiffs claim that defendantIs use of their identities in the manner descri ed a o#e in#aded their respecti#e rights of pri#ac$. /olding' The 4upreme :ourt held that a corporation does not ha#e a right of pri#ac$% and hence cannot ring an action for its in#asion. The :ourt accordingl$ re#ersed so much of the decision of the lo!er courts !hich found in fa#or of the (ni#ersit$ on its right of pri#ac$ claim. The court did note that there !ere a num er of claims the (ni#ersit$ could ring !hich might permit redress for the alleged misappropriation of its name $ defendant% including unfair competition and trademark infringement under 1ndiana 4tate la!. &ecause such claims had not een pled% ho!e#er% the court did not determine !hether defendantIs conduct constituted either unfair competition or trademark infringement. The :ourt affirmed so much of the decisions elo! !hich held that defendant% $ his conduct% had #iolated the pri#ac$ rights of the indi#idual plaintiffs. Mith one modification% the :ourt upheld the injuncti#e relief granted the indi#idual plaintiffs $ the lo!er courts. The 4upreme :ourt modified the injunction so as to permit defendant to continue to nominate (ni#ersit$ emplo$ees for positions !ith third parties% pro#ided that in so doing% he did not create the appearance that his nominations came from an$one other than himself. The :ourt upheld the alance of the injunction as it pertained to the indi#idual plaintiffs% and those associated !ith the (ni#ersit$. Collecti e &argaining and Faculty Problems :ollecti#e &argaining and 5acult$ 6egents &$ 8a! ,=D is the go#erning statute. 386A might also e rele#ant 4hared go#ernance U / U order 4hared go#ernance causes challenges !ith at least ' .ue 7rocess and 6easona le Expectation Mhat is demotionN 8oss of rank ($es) 6eduction of salar$ (N) 6emo#al of resources (N) 8oss of administrati#e responsi ilities (N) 5acult$ Grie#ance The$ file claim Get a a panel of their peers

&oard of 6e#ie!

/$pos Mhat to doN .irt$% smell$ tenured prof o (se other facult$ to create )peer2pressure.* All !e reall$ !ant is for them to eha#e% not to punish 7rof refuses to teach class% e#en though the$ suck and its their turn o Tension' refuse to put him in front of class with pro#iding good incenti#e sto those profs !ho don"t !ant to teach the class either Teacher isn"t pu lishing o .ean steps in and offers to help and gi#e additional resources 4er#ice :omittment o 3ot a ig deal% departments deal !ith this

Exam 8imited space' 1 should think carefull$ a out clarit$ and organiLation Each question' consider the audience 1f lo! on space !rite' let"s talk a out this soon Appl$ legal standards to the facts gi#en :urrent context is important .on"t reiterate facts :ite sources clearl$ :losing 3otes (ni#ersit$"s Goal' Academic 5reedom and the search for truth These are under attack :ontext matters0 things change