Educational Law & Ethics

'''Considering First Amendment Protection Are Special Rights for Academics Warranted'''

Kaplin & Lee (2007) challenge the reader to compare and contrast the majority and dissenting opinions of First Amendment protection issues raised in the landmark case; Urofsky v. Gilmore. The first part of this paper will examine the reasoning for the opposing perspectives. The second part of the paper will specifically address “whether professors (or academics) at public institutions have – or should have – First Amendment free speech rights that are more expansive, or differently configured, than the free speech rights of other public employees” (Kaplin & Lee, 2007, p. 281). Finally, after considering all the facts, a common sense solution shall be presented.

At the heart of the case is the Appellees argument “that a university professor possesses a constitutional right to determine for himself, without the input of the university (and perhaps even contrary to the university’s desires), the subjects of his research, writing, and teaching” (Kaplin & Lee, 2007, p. 281). In their defense, the Appellees cited the first case where the Supreme Court addresses academic freedom. In that case, the court wrote “liberties in the areas of academic freedom and political expression” [and that] “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die” (Kaplin & Lee, 2007, p. 284). Two judges validated this concern in their dissent. Circuit Judges Murnaghan and Wilkinson posited the majority’s decision “deprives the public of the unique insights that public employees can provide in their areas of specialization” (Kaplin & Lee, 2007, p. 298).

Judge Murnaghan examined the decision from two perspectives; under and over inclusiveness. As to the latter, he finds the decision is over reaching prohibiting “research and commentary by state employees who access this material to advance public discourse, awareness, treatment, and commentary on a variety of disciplines and social problems” (Kaplin & Lee, 2007, p. 300). Even with the proposed modification of the decision that affords governance bodies of the university to authorize specific people to research and teach specific issues, Judge Murnaghan warns this accommodation is tantamount to censorship. He cites City of Lakewood v. Plain Dealer Publishing Co., wherein the court found;

“when the determination of who may speak and who may not is left to the unbridled discretion of a government official. . . we have often and uniformly held that such statutes or policies impose censorship on the public or the press, and hence are unconstitutional, because without standards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker” (Kaplin & Lee, 2007, p. 300).

Judge Murnaghan elaborated on this point by stating that the mere existence of arbitrators who determine what is or is not acceptable for research or to be taught is intimidating and insidiously undermines the First Amendment. The majority decision approached this issue from a different perspective. They examined the case from the perspective of “whether the employee’s interest in First Amendment expression outweighs the public employer’s interest in what the employer has determined to be the appropriate operation of the workplace” (Kaplin & Lee, 2007, pp. 278. 279). The majority also distinguished between academic freedom as it applies to the institution versus the individual faculty. Citing the case of NTEU, the majority held “the state, as an employer, undoubtedly possesses greater authority to restrict the speech of its employees than it has as sovereign to restrict the speech of the citizenry as a whole” (Kaplin & Lee, 2007, p. 278). It appears the majority considered the rights of the institution should exceed those of the individual faculty. Even when considering the possibility that faculty may be within the bounds of their professional capacity and in the public interest, the court required they receive prior approval for their research endeavors, if it was to occur under the auspices of a public institution employer. The dissenting judges argued that any endeavor undertaken by a public university faculty member is inherently within the context of advancing the public good and that the existence of a filtering mechanism is tantamount to policing thought and expression, and a violation of their First Amendment rights. The majority’s contention that the First Amendment is placed in the trusting hands of the University for its’ discretionary disbursement to faculty fails to consider the changing winds of politics or the ways faculty may be intimidated by implied or explicit threats of employment termination based on their scholarly activities. The majority asserts that universities practicing such approaches would find themselves without faculty or students. This seems a superficial analysis and essentially places faculty in the position of resigning or students withdrawing on principle as a way to challenge First Amendment violations.

Indeed, these rights, dissenting judges argue, are not limited to academia. They argue “the majority’s position would plainly allow the prohibition of speech on matters of public concern” and that “this restriction swept within its ambit “research and debate on sexual themes in art, literature, history, and the law; speech and research by medical and mental health professionals concerning sexual disease, sexual dysfunction, and sexually related mental disorders; and the routine exchange of information among social workers on sexual assault and child abuse” (Kaplin & Lee, 2007, pp. 291, 292).

Ultimately, the Appellees are seeking an expanded interpretation of the First Amendment right of academic freedom. Rather than empowering governmental employees to extend academic freedom to faculty, the dissenting judges suggest academic freedom be extended directly to the faculty. The majority argues that academic freedom only applies when it serves the public interest and supports “the efficiency of the public services it performs through its employees” (Kaplin & Lee, 2007, p. 278). The dissenters argue, as long as academic endeavors directly relate to the furthering of a faculty members discipline, their scholarly activities are inherently in the interest of the public good and must not be hampered by bureaucrats or politically vulnerable governmental officials.

The notion that any employee is exempt form supervisory oversight flies in the face of common sense. Even in the case of scholarly pursuits, freedom to use governmental resources to research topics and teach ideas is not unlimited. While such works may not necessarily be dictated by a governing body, for academic freedom to thrive, a most sensible approach would to balancing institutional priorities and scholarly activities would be to promote a discipline specific review board, with members from the administrative and academic divisions of the university, who will guide and judge the value of a faculty members endeavors.

Freedom of Expression

The First Amendment has been interpreted so the freedom of speech is placed into a context where such rights are “always tempered by a consideration of the rights of the audience and the public purpose served, or disserved, by his speech” (Kaplin & Lee, 2007. 259). According to the Supreme Court, the First Amendment for a public institution’s faculty is even more “limited to speech on matters of public concern” (Kaplin & Lee, 2007. 259). Therefore, First Amendment rights are afforded faculty unless said issues are of a personal nature. However, distinguishing between public concerns and those of a personal nature can be difficult.

The court concedes that when speaking as a citizen, faculty enjoys the same constitutional rights of any citizen. However, if speaking as an employee of a public institution, “the government is entitled to control the content of the speech because it has, in a meaningful sense, purchased the speech at issue through payment of salary” (Kaplin & Lee, 2007, p. 283). A dissenting view in Pickering/Connick points to content and context as important considerations. Teaching, no matter what discipline, directly impacts society and so impacts public concern. Thus, only considering role, without the frame of context or content is an inherently unbalanced application of the First Amendment in public educational institutions.

While the role of higher education directly addresses public concern, there are some circumstances that clearly illustrate ways that teachers’ attempts at serving public concerns are overshadowed by their own personal agenda. In Martin v. Parrish, the issue of profanity in the classroom was examined. If the language was used in the context of promoting insight into the subject matter, public concern may be argued and First Amendment rights upheld. In this case though, the instructor reports using the language to motivate his students. This rationale might be acceptable in some governmental environments but in a place of higher education it can be argued that this is not common practice. Therefore, neither role, content nor context affords extension of the constitutional right to free speech.

Kaplin & Lee (2007) pose the question as to whether there is any context where hate speech is protected under the First Amendment. “Many universities, under pressure to respond to the concerns of those who are the objects of hate, have adopted codes or policies prohibiting speech that offends any group based on race, gender, ethnicity, religion or sexual orientation” (Hate Speech on, 1994). The question need be raised as to whether hate speech can be interpreted as being made in the name of public good. In Martin v. Parish, no specific group was singled out, so by definition it is not hate speech.

Kaplin & Lee pose another question related to specific words that can be interpreted as hate speech. Hardy v. Jefferson and Martin v. Parish well serve to illustrate the principle of First Amendment protections of using emotionally charged words that might be interpreted by some as hate speech. Hardy used words commonly known to be abusive and hateful within the context of a course that intended to specifically address the way certain forms of communication have social implications that fuel racial divides. Indeed, certain words and ideas necessarily had to be used to meet the goals of the course and the course clearly connected with improving the greater good of public concern. As such, he was protected under the First Amendment. Not so in the case of Martin v. Parish where the instructor used profane language in a way that represented his feelings towards his students rather than with the goal of improving student understanding of the academic content and furthering the greater good concerning the public. Kaplin & Lee (2007) also work to distinguish between freedom of speech and academic freedom. In examining Pickering, the case defines the parameters for applying the First Amendment. Ufrosky defines the limits of academic freedom. According to the latter, academic freedom is broadly applied to an institutions freedom to pursue scholarly inquiry without governmental interference. It does not, however, necessarily extend that freedom to individual faculty within the university. The case illustrates that faculty do not have the freedom to undertake their responsibilities without oversight and definition of purpose, content and form. Pickering too illustrates the limitations of the First Amendment in public institutions of higher education, specifically pointing to the role of the speaker and the duty to meet concerns of the public in order to find protection under the First Amendment.

Applying the Office of Civil Right’s Three Part Test

Kaplin & Lee (2007) pose three questions related to sex discrimination under Title IX. This paper will examine “Problem 18” (Kaplin & Lee, 2007, p. 661) and address two questions.

First, “is the college subject to the requirements of Title IX and more specifically, and is its athletic program subject to the requirements of Title IX” (Kaplin & Lee, 2007, p. 661). Secondly, “has the college complied with Title IX’s requirement that it effectively accommodate the interests and abilities of women students” (Kaplin & Lee, 2007, p. 661)? Lastly, “on which of OCR’s three benchmarks for measuring effective accommodation of student athletes’ interests and abilities might the college base its defense” Kaplin & Lee, 2007, p. 661)?

To the first question regarding the applicability of Title IX, the athletic program is certainly subject to the requirements of Title IX. Following the Civil Rights Restoration Act of 1987, if “any arm of an educational institution received federal funds, the institution as a whole must comply with Title IX’s provisions” (Kaplin & Lee, 2007, p. 642). While the athletics department did not specifically receive federal funding, federal student aid was afforded to students. Thus, Title IX applies.

According to Kaplin & Lee (2007), women at the school in question were statistically underrepresented in athletics prior to the budgetary shortfall. After the cuts, men still made up 62% of the varsity student athlete population. Thus, with only a 4% overall gender gap in enrollment, between men and women, men were represented 25% more in athletics. However, “under the proviso contained in section 1681(b), a Title IX plaintiff in an athletic discrimination suit must accompany statistical evidence of disparate impact with some further evidence of discrimination, such as unmet need amongst the members of the disadvantaged gender” (Kaplin & Lee, 2007, p. 643). The problem presented does not describe any attempts to juggle budgetary resources, perform fundraisers or even retain students who promise t leave the school if the cuts are enacted. Nor was their any rationale as to how the decisions were made to cut the teams in question. Unless cuts were made as the results of a written policy that, for example, dictates cuts based on seniority ie: men’s team have been established longer, so establishing some reason behind the choice to maintain an inequity in gender representation in varsity sports, a strong argument can be made for discrimination under title IX.

When considering the disproportionate resources allocated to men at the school, Title IX appears to have been violate “congress’s unmistakably clear mandate that educational institutions not use federal monies to perpetuate gender-based discrimination” (Kaplin & Lee, 2007, p. 658) However, the third benchmark, defined by the Office of Civil Rights for assessing discrimination may be interpreted in defense of the college’s actions. It states; “Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program” (Kaplin & Lee, 2007, p. 647).

The college is able to show a significant investment in women’s varsity sports over a 15 year period. “Women’s athletics teams at the college first reached varsity status in the early 1970s and continued to expand in number throughout the 1970s and 1980s (Kaplin & Lee, 2007, p. 661). Eliminating one of those teams does not necessarily illustrate a practice of discrimination by the school. The “OCR considers the quality and kind of other benefits and opportunities offered to male and female athletes in determining overall whether an institution provides equal athletic opportunity” (Clarification, 2005. para. 13).

The school may also argue that it is not clear what its responsibilities are to comply with the third part of the OCR test requiring the school “fully and effectively accommodating interests and abilities of the underrepresented sex--centers on the inquiry of whether there are concrete and viable interests among the underrepresented sex that should be accommodated by an institution” (Clarification, 2005. para. 6). This is evidenced by the plethora of cases that continue to be filed. “As of June 7, 2002, OCR was monitoring 111 intercollegiate and interscholastic cases that involved the three-part test” (Q & A—secretary's, 2007. para. 9). Thus, it can be argued that the college cannot be held to guidelines that are so vague.

Kaplin & Lee (2007) presented three questions that help to frame the issues surrounding Title IX controversies. Given continued vagaries regarding its application, it is clear the office of civil rights will be addressing suits for some time to come. Allocation of resources, extension of Ttile IX to secondary and elementary school settings, as well as specific accommodations and policies of due process must be identified if schools are to creatively and fairly remediate problems that arise.

A Dialectic: Freedom of Expression and Non-Discrimination

Kaplin & Lee (2007) present a case that juxtaposes a student group discriminating membership policies with its right to freedom of expression and access to student government funds/campus facilities. In this paper, I will address the dialectical issues pertaining to discriminatory membership practices, mandatory student activities fees going for funding of groups which espouse racist viewpoints and the principles of free speech on campus. What is the likelihood of ABS’s success in this lawsuit?

ABS will successfully squelch the discriminatory practice of the New Light Fellowship (NLF) of denying membership to students of color. Pointing to the denial of students of color from joining the club, not the ideas or expression of those ideas “the 9th Circuit in Truth v. Kent School District ruled the school was “justified in prohibiting invidious discrimination” (Leaming, 2007. para. 2) and denying their right to operate on campus. The decision was not “aimed at muzzling student religious expression, but was rightly targeted at blocking discrimination” (Leaming, 2007. para. 15). Should the university redraft its policies for recognition of student organizations and for allocating student fees to student organizations?

The existence of NLF, its funding from mandatory student fees, and its use of campus facilities are all protected, despite the organizations beliefs. Kaplin & Lee (2007) point to the Supreme Courts Southworth decision to clarify “guidelines that public institutions may use to help assure that their systems for allocating mandatory student activities fees to student organizations are constitutional under the First Amendment” (Kaplin & Lee, 2007, p. 524). These guidelines are specifically in place “for the purpose of facilitating the free and open exchange of ideas by and among its students” (Kaplin & Lee, 2007, p. 520) embracing viewpoint neutrality as the guiding principle of such practices. However, according to Kaplin & Lee (2007), the university might disallow a share of student fee’s or access to facilities for an organization, without violating rights, if the organization does not comply reasonable rules of conduct on campus. This is especially so if institutional leadership believed “with reasonable certainty” (Kaplin & Lee, 2007, p. 515) such a group will be or has been significantly disruptive to the campus community in a way that is not protected by their Constitutional rights. For example, if a group were to break local, state or federal laws, they could be partially or fully denied funding from the student government or access to facilities. Would the analysis be any different if the New Light Fellowship discriminated on the basis of sexual orientation rather than race?

However, the university in question is currently at risk of being sued for violating the rights of its students, by affording funding to a club that discriminates by race when considering membership applications. The Constitution protects allows club members freedom of expression regarding their religious beliefs.. However, the constitution also protects the citizenry from discriminatory membership guidelines. Thus, groups that wish to speak out against people of color are also required to allow people of color to join the conversation. The reasoning behind such dialectic is to promote healthy dialogue in a free society rather than enclaves of biased sub-groups caught up in a self-perpetuating cycle of discriminatory practices and separatist thinking. Such discriminatory practices against people of color, gender, age and religious diversity are prohibited by the United States Constitution. As such, the university should redraft its policies to exclude groups who discriminate from receiving funds from the student government.

While seemingly, diametrically opposed, discriminatory membership practices, mandatory student activities fees used for funding groups which espouse racist viewpoints and the principles of free speech on campus all work to balance one another. Free speech works but only when varying view points may be heard and funding can be made available to groups in a viewpoint neutral fashion but only if membership in the groups are non-discriminatory.

Freedom of Association and Anti-discrimination Laws

Freedom of Association, as defined by the First Amendment and federal antidiscrimination laws are principles that have come into conflict over the past decade. Freedom of association is defined as “the right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution” (Bernstein, 2004. p. 1). Antidiscrimination laws are defined under Title VII which “prohibits discrimination in employment based on race, sex, color, national origin or religion” (What Are the Major, n. d.).To illustrate these matters, Kaplin & Lee (2007) present the case of facts of Christian Legal Society (CLS) v. Walker. The facts of the CLS case are as follows: “The dean of Southern Illinois University’s School of Law (“SIU”) revoked the official student organization status of the Christian Legal Society (“CLS”) chapter at SIU because he concluded that CLS’s membership policies, which preclude membership to those who engage in or affirm homosexual conduct, violate SIU’s nondiscrimination policies. CLS sued SIU for violat¬ing its First Amendment rights to free speech, expressive association, and free exercise of religion, and its Fourteenth Amendment rights of equal protection and due process” (Kaplin & Lee, 2007, p. 596).

The CLA asserted that being forced to include homosexuals or supporters of such behavior as members, as required by campus rules prohibiting discrimination, restricted its “ability to express its disapproval of homosexual activity” (Kaplin & Lee, 2007, p. 529). Reversing decisions from lower courts, the Supreme Court rejected the idea that their was a compelling state interest to force membership rules to include homosexuals and found that compelling the group to include such members would violate their First Amendment rights to freedom of association.

At issue is the conflict between the right of expressive association and anti-discrimination laws. Anti-discrimination laws would require CLA to include homosexuals in their membership, regardless of the fact that homosexuality is antithetical to their beliefs. The CLA claims that such members, just being present and despite their lack of voting authority, would impede their Constitutional rights of freedom of speech. The reasoning behind this statement seems to be that members would feel inhibited to speak their mind if members with opposing views were present. To resolve this conflict one must look to precedent setting cases.

One example of this conflict can be examined in the 1995 Supreme Court decision regarding Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB). The case dealt with a homosexual sub-group seeking to express its views as part of a larger group of Irish American marchers in a parade. Despite a dissenting opinion invoking an argument that the State has a compelling interest to eradicate discrimination, the U.S. Supreme Court determined that GLIB could not march under their own banner as such an action “would violate their (the organizers right to expressive association by forcing them to convey a sexual message” (Bernstein, 2004. p. 10). If one were to apply this reasoning in the case of CLA, the student group would find legal precedent to bar homosexuals from its membership roles. However, in 2000, another case related to the conflict between anti-discrimination laws and freedom of association came before the Supreme Court.

“In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer.

In this case, the Supreme Court looked back to Hurley and “invoked Roberts for the proposition that state laws against discrimination may take precedence over the right of expressive association because ‘acts of invidious discrimination in the distribution of publicly available goods, services and other advantages cause unique evils that the government has a compelling interest to prevent” (Bernstein, 2004. p. 13). The decision apparently hinged upon the courts finding “that forcing the Boy Scouts of America (BSA) to allow Dale as a member would not significantly affect the BSA’s ability to express its views or carry out its interests” (Bernstein, 2004. p. 13). In other words, it is not within the mission of the BSA to challenge homosexuality in any fashion. As such, the court ruled for enforcement of anti-discrimination laws to be upheld and Dale to be admitted into the BSA.

The Boy Scouts of America v. Dale sets the precedent for how Christian Legal Society v. Walker must be settled. In both Dale and in the case of Christian Legal Society (CLS) v. Walker, there is an explicit or implicit rejection of homosexuality on moral grounds. Having found the BSA had the right to dismiss a scout master based on the laws protecting freedom of association; it appears the courts are reticent to place the interests of the State the CLA would also have the legal right to do so as well.

There are some distinctions between these cases worth mentioning. Dale concerns hiring practices in a private organization. CLA deals with membership in student group on the campus of public university. Furthermore, the employee being hired is in a leadership position, whereas the discrimination claim against CLA is related to membership and voting rights within the student group, not a position of leadership. These types of issues may be factors for future courts to consider as this conflict between freedom of association and anti-discrimination laws are further examined.

Balancing Private Property and Constitutional Rights 

This paper will examine the conflicting nature of private property rights juxtaposed to the right to freedom of expression. Issues to be addressed include balancing constitutional rights to freedom of expression and private property rights, the nature of usage of private property, autonomy versus state or federal infringement on decision making and due process. An analysisi of how the decision in the Schmid case may extend to other private venues that welcome the public into its fold will also be addressed.

In this case, the Supreme Court found that the state violated Schmid’s Federal and state constitutional right to freedom of expression, when he was arrested for trespassing, while distributing flyers on the campus of Princeton University. This decision came after deliberating between a private institutions rights to autonomy and their private property interests and constitutional rights to freedom of expression. In order to strike a balance between “legitimate interests in private property with individual freedoms of speech and assembly” (Kaplin & Lee, 2007, p. 671) the court designed a test which generally recognized that “the more private property is devoted to public use, the more it must accommodate the rights which inhere in individual members of the general public who use that property” (Kaplin & Lee, 2007, p. 672).

As it is the mission of universities to ensure the expression of diverse view points and it regularly invited members of its own community to express such, as well as invited members from the general public to do so as well, the courts found that Schmid met the threshold of reasonableness to afford the defendant his right to expression, as guaranteed by the state constitution, to disseminate his flyers. The courts further qualified their decision by acknowledging a universities “singular need to achieve essential educational goals and regulate activities that impact upon these efforts has been acknowledged” (Kaplin & Lee, 2007, p. 676) and that universities must be afforded “a generous measure of autonomy and self- governance if they are to fulfill their paramount role as vehicles of education and enlightenment” (Kaplin & Lee, 2007, p. 676).

However, “the University regulations that were applied to Schmid contained no standards, aside from the requirement for invitation and permission, for governing the actual exercise of expressional freedom. Indeed, there were no standards extant regulating the granting or withholding of such authorization, nor did the regulations deal adequately with the time, place, or manner for individuals to exercise their rights of speech and assembly” (Kaplin & Lee, 2007, p. 676).

Considering the test that works to balance the constitutional right to freedom of expression and private property rights, as well as the lack of specific regulation regarding exercising those freedoms on the campus of Princeton University, the courts found Shmid’s constitutional rights were violated.

Did the court’s opinion in Schmid unduly interfere with the autonomy of private colleges and universities?

To answer this question, Kaplin & Lee (2007) ask whether the court should have recognized some type of “institutional academic freedom” that would protect private institutions against such exercises of state power? Private universities are corporations and are recognized as person’s “according to Constitutional theory” (Kaplin & Lee, 2007, p. 259). When a private school’s institutional academic freedom, or academic autonomy, is challenged by state laws they may assert their constitutional rights. “The Founders did not intend that these protections extend only to land or discernible assets, but to all the rights inherent in property — real or personal, tangible or intangible” (Property Rights, n. d.). It could be argued that coercing Princeton to allow anyone to disseminate information on its campus infringed upon its right of defining usage of its property and in some cases disrupt its ability to perform its primary functions.

However, this case did not hinge upon determining which of two person’s suffered abridged constitutional rights. Rather, the courts examined issues of due process, determining that if “the university’s regulatory policies governing the time, place, and manner for the exercise of constitutionally protected speech and associational rights the regulations” (Kaplin & Lee, 2007, p. 677) were more fully and adequately defined, a decision may well have been rendered in favor of the university. The decision for Schmid resulted in a refined test for striking a balance between constitutional rights and the rights of private corporations. It also assisted Princeton and private schools in general in refining their policies to better ensure their institutional autonomy is protected against state authority in the future.

“On December 24, 2007, the Supreme Court of California issued a ruling in Fashion Valley Mall, LLC v. National Labor Relations Board elevates the right of speech at the potential expense of private property rights, placing the burden on the property owner to ensure that speech rights are not hindered, even by private property rights. The court effectively held that the owner of a mall must permit speech to take place on its premises even if that speech seeks to subvert the intended purpose of the mall” (Stout, 2008. p. 1).

Reasoning that the very nature of the private property of stores in malls was to attract public attendance, the courts found that the public good, including constitutional rights to freedom of expression, superseded individual property rights. Just as citizens may need to understand their rights to free expression, understanding the issues surrounding the rights of private property holders is ever more critical for those private property owners who may wish to maintain some regulatory control regarding the liberties some will exercise on those properties. By examining the reach of federal and state constitutional laws and the importance of due process, one will become familiar with the crucial issues correlated to balancing constitutional rights to freedom of expression and private property rights.

Balancing Student and University Rights

Question 1: In response to Guckenberger II, the faculty committee determined that the foreign language requirement was central to its arts and sciences majors. The court, in Guckenberger III [8 F. Supp. 2d 82 (D. Mass. 1998)] concluded that the university had complied with the law in determining that eliminating the foreign language requirement for students with disabilities would “fundamentally alter the nature of the degree.” How does this ruling compare to other court rulings that deal with academic judgments?

Kaplin and Lee (2007) present the case of Guckenberger v. Boston University as an example of how to apply the ADA and the Rehabilitation Act directs schools to “not discriminate against a student who is disabled by denying a reasonable request for an accommodation, unless granting that accommodation would fundamentally alter the nature of the academic program” (Schmitz, 2006. p. 9). However, before a university is required to accommodate a student even once a disability is found to exist, the student must then show the “disability is severe enough to substantially limit learning or another major life activity” (Denbo, 2003. p. 5).

In Bragdon v. Abbott, the U.S. Supreme Court ruled the Supreme Court ruled “that a determination of whether certain impairments are substantially limiting requires an examination of the availability of mitigating or corrective measures” (Denbo, 2003. p. 6). The courts in McGuinness v. University of Mew Mexico School of Medicine found “that a plaintiff whose anxiety disorder manifested itself when he took chemistry and mathematics tests was not substantially limited in the major life activity of academic functioning because he was able to mitigate his anxiety by altering his study habits” (Denbo, 2003. p. 6).

The issue of accommodation is not limited to academic performance. There are also rulings related to behaviors other than academic performance including behaviors that are dangerous to ones self or others. The case setting precedent that determines a schools responsibility to accommodate behavioral issues was Bercovitch v. Baldwin School. In that case, the court determined the disability to be addressed in an educational institution must be directly related to the students’ learning capacity. Thus, schools are required to accommodate for learning disabilities but not disruptive behaviors. Disruptive and dangerous behaviors do raise other legal questions, however.

As settled by Tarasoff, when considering their actions regarding mental health issues, university personnel must consider their duty to warn those who may be affected by the dangerous behavior, including authorities if the danger is of a suicidal nature. Furthermore, faculty and administrators “may face tort claims for their alleged negligence” (Kaplin & Lee, 2007. p. 420) if they do not take protective actions. In addition to Tarasoff, there is also the need to consider the Family Educational Rights and Privacy Act which addresses the issue of contacting a students’ family in cases of an emergency. Kaplin & Lee (2007) write, courts place a great emphasis on due process as is outlined in school policies or by common practice and even case law. Before a school takes any disciplinary action or immediate following a disciplinary action, Kaplin & Lee (2007) warn due-process must be provided for courts to find in their favor.

Question 2: After reviewing the court’s opinion in Guckenberger II, how would you advise the head of the office of disability services with respect to balancing the institution’s concern for upholding academic standards with the requirements of the ADA and Section 504?

When considering accommodations for a student with academic disabilities, the university may require documentation of a disability and remain in compliance with the ADA and Section 504 because such policies “allow the university to judge which students are eligible for the learning disability services and to tailor reasonable academic accommodations” (Kaplin & Lee, 2007, p. 482). This can be done in a number of ways including evaluations by one of many professionals who specialize in assessing and evaluating such matters. The disability office must not dictate who is to do the assessing or evaluating. Nor should the school use any criteria related to ones disability for the selection or refusal for admission of a student. Rather the evaluation must be used to help identify the necessary accommodations needed for the student to be successful in learning the material required for graduating.

The university is required to “undertake a diligent assessment of the available options” and use “a professional, academic judgment” (Kaplin & Lee, 2007, p. 491). However, “federal law does not require a university to modify degree requirements that it determines are a fundamental part of its academic program by providing learning disabled students with course substitutions” (Kaplin & Lee, 2007, p. 469). In any case, the office of disability must ensure that students are afforded reasonable due process in their evaluation for accommodations and any subsequent academic penalties. Furthermore, all recruitment materials and the student handbook must clearly sate school policies and procedures and the school must adhere to such. More specifically, it should be outlined in the handbook that disciplinary action will be taken for dangerous or disruptive behaviors, even if such is resulting from a mental health disorder and that there is no protection for any student under the ADA or the Rehabilitation Act.

Application of Nondiscrimination Laws to Faculty Employment Decisions

The issues of affirmative action, professional capacity to perform and constitutional or institutional due process all contribute to the difficulty of proving discrimination. More specifically, two issues with which courts must often contend include defining standards and criteria objectively and determining intent. In this paper, Kaplin & Lee (2007) discuss two questions specifically considered in regards to demonstrating unequal behavior in employment practices,

'''Question 2: What factual information does the administration need before making the decision? What legal information does it need?''' From a legal perspective, the hiring committee must determine whether their school is beholden to the U.S. Constitution, their school policies and procedures or both. Assuming both apply, the school needs to establish whether the hiring of Dr. Gemini satisfies efforts to meet affirmative action quotas. Furthermore, they must determine whether recruiting a professor at a compensation rate disproportionate to her counterparts and denying her counterparts merit pay in order to fund such a decision goes beyond reasonable efforts to comply with affirmative action. If it does, the institution may be engaging in discriminatory hiring practices.

If not for the issue of reallocating funds for merit pay for the purpose of funding Dr. Gemini’s position, the institution might be able to make a rational argument for higher compensation. Discrimination is defined as “unequal of otherwise similar individuals” (Kaplin & Lee, 2007, p. 202). Arguably, if Dr. Gemini’s qualifications are distinctly dissimilar enough, to those of the other members of the faculty, to warrant a compensation package that differs from that faculty discrimination may not be found. To effectively ensure that they are not discriminating against current faculty, a genuine vetting process must be part of the hiring process, in order to determine if a current faculty member can meet the standards and criteria of the position to be filled or if a national search might result in a candidate to fill the position at a pay rate comparable to current faculty.

In summary, it is not Dr. Gemini’s promotion which is in question. It is the reallocation of earned merit pay from current faculty for the purposes of compensating Dr. Gemini that creates a conflict. Even if affirmative action or the university's policies and procedures afford the school flexibility or even a shield, allowing it to hire Dr. Gemini for higher pay and so depleting funding for earned and promised merit pay for current faculty, such a decision flies in the face of academic custom and usage ( (Kaplin & Lee, 2007, p. 235) and so raises questions of discriminatory hiring practices.

Question 5: Would the legal issues change if Dr. Gemini had not received an outside offer, but merely demanded a bigger salary and threatened to leave if the university didn’t comply? Considering the new premise, one would need to examine the legal matters and the facts that might motivate compliance with Dr. Gemini’s demand for a higher salary. When considering professional capacity, in order for claims of discrimination to be dismissed the institution must prove that Dr. Gemini’s qualifications are sufficiently similar to her colleagues. As to affirmative action, the institution needs to determine to what degree, if any, it can or must go in order to meet affirmative action standards. In this case, it could be argued that affirmative action is a guise for what amounts to discriminatory practices. Indeed, affirmative action and Title VII have been noted to exist in contradiction to one another. In the case of U.S. Steel Workers of America v. Weber (1979), the dissent written by Justice William Rehnquist, joined by Chief Justice Warren Burger argued “a literal reading of the plain meaning of Title VII, clearly prohibited the affirmative action program" (Konkoly, 2006. para. 4).

According to Kaplin and Lee (2007) most courts will exercise judicial deference in regards to hiring decisions in academia when the basis for the suit is for a performance related reason. However, the courts are more likely to become involved when it appears “the decision-making process was flawed” (Kaplin & Lee, 2007, pp. 202, 203). As such, the institution must be sure to provide due process by engaging in a hiring procedure that follows fair and even-handed procedures for all who apply for the position.

This paper reviewed the potential legal issue that could arise as a result of the facts surrounding the case study. Affirmative action, Title VII of the U.S. Constitution, professional capacity and due process were examined and found to be potentially relevant to the case. Ultimately, in private schools, constitutional law may not be upheld but suits may be actionable based on the standard of academic custom and usage.

Sex Discrimination

In the case of Kunda v. Muhlenberg College, a faculty member was referred by her department chair for promotion to the rank of assistant professor. Despite stellar annual reviews by the department chair and her peers and repeated recommendations for promotion and eventually tenure, Kunda was denied both. “Kunda brought this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1976), alleging that Muhlenberg had discriminated against her on the basis of sex when it failed to promote her and denied her tenure” (Kaplin & Lee, 2007, p. 196).

Muhlenberg University argued Kunda was denied promotion and tenure for lack of a terminal degree in her discipline and that the future of the department was indeed facing restructuring and fiscal cuts, both being factors leading to the decision to deny Kunda a promotion or tenure. As to the former, the faculty handbook states; for a promotion “the Ph.D. or its scholarly equivalent or recognized achievement in a field shall be required” (Kaplin & Lee, 2007, p. 197). In regards to the issue of having a teminal degree or it’s equivalent, in order to be promoted, Kaplin & Lee pose the following questions for discussion.

What do you think the drafters of that language (in the faculty handbook) intended?: Two sub-issues must be addressed in regards to the wording and intent of the faculty handbook. First is the issue of time need working as a professional on campus. Secondly, I the absence of a doctoral degree, there is a need to determine what sorts of activities meet the definition of “scholarly equivalent or recognized achievement in a field” (Kaplin & Lee, 2007, p. 197). As to the former, the university president and the board of trustees disagree as to the rule that a faculty member must serve four years at a professional rank, before being granted tenure. The President and a faculty member testifying that a faculty member who helped draft the policy held that a faculty member must served at least four years at a professional rank. Yet, the Board of Trustees “retained the power to grant tenure to a faculty member who had not served at a professional rank for four years” (Kaplin & Lee, 2007, p. 19). While the language regarding a terminal defeee is somewhat vague, these qualifications are clear and it seems the board of trustee’s overstepped it bounds. As to the definition of “scholarly equivalent or recognized achievement in a field” (Kaplin & Lee, 2007, p. 197), Kunda was found by her supervisor and peers to meet the standards of excellence that would warrant a promotion and tenure.

Did the college’s failure to argue that the “scholarly equivalent” needed to be an actual degree rather than other forms of achievement affect the outcome of the case?: This case did not hinge on the definition of scholarly equivalent. Rather, the case was build upon the University’s leadership failing to follow standard procedures, disinformation and discriminating practices between Kunda’s male colleagues and herself.

Could it have made that argument, given its past behavior?: Even if the University leadership had informed Kunda that getting a terminal degree was required for promotion or tenure, she could still have referred to the fact that her male colleagues were promoted without their terminal degree, so bolstering her argument for sex discrimination. Kaplin & Lee, 2007 presented a case that hinged on evidence highlighting procedural irregularities, the difference in mentorship received by male members and by plaintiff and precedents for promotion set by the university regarding achieving promotions or tenure. It is notable that the university could have challenged the interpretation of scholarly equivalent or reasserted an early claim that the department had fiscal challenges. Indeed the “College had ample opportunity during the trial to present testimony as to any other factor on which the decision to deny tenure was based and failed to do so” (Kaplin & Lee, 2007, p. 208).

Interested particpants
Dr. Rutberg (discuss • contribs) 21:09, 31 March 2014 (UTC)