Higher education leaders were anxious throughout the spring about the U.S. Supreme Court's pending ruling on affirmative action. While the ruling was less decisive than some expected (and many feared), it once again illustrated how significant the courts can be for American higher education.
As the Supreme Court was ruling, a new book was being released about the intersection of academe and the judiciary. Suing Alma Mater: Higher Education and the Courts (Johns Hopkins University Press) is by Michael A. Olivas, the William B. Bates Distinguished Chair of Law at the University of Houston Law Center and director of the Institute for Higher Education Law and Governance. Olivas is a prominent advocate in the legal world for minority students -- he helped Texas legislators draft the "10 percent" law that added significant diversity to the state's public colleges and has been outspoken in defense of affirmative action. He's also a leading expert on immigration law, pushing for the rights of students without legal documentation to live in the United States.
He responded via e-mail to questions about his new book:
Q: You note lawsuits of which you are sympathetic and those you question: What are one or two lawsuits in the last half century that you think have done considerable good for higher education?
A: On the civil rights/affirmative action road, Grutter [a 2003 decision on affirmative action] reaffirmed Bakke, and as such, allowed colleges to continue using race properly and modestly. The Supreme Court should have left it alone and denied cert to Fisher [the case decided this year], as it was settled law. And although it was not a college case, Plyler v. Doe allowed the children of undocumented parents to remain in school, and so made it possible for many of these children to go to college and become near-citizens. Deferred Action for Childhood Arrivals (DACA) and the enactment of comprehensive immigration reform with a DREAM act will complete this arc.
Q: What are one or two that have done considerable harm?
A: Rosenberger v. Rector of University of Virginia allowed religious groups to have their publications paid for by state colleges, and [said] that the university must provide a financial subsidy to a student religious publication on the same basis as other student publications. In my view, this 5-4 decision stretched the earlier Widmar v. Vincent doctrine about viewpoint discrimination. A Christian publication with a state college logo, in my view, elides the difference between reasonable religious accommodation and endorsement. The magazines and publications -- by design -- look exactly like alumni magazines, when I think that such groups should have been required to render unto Caesar.
Q: Many groups that sue colleges call themselves "civil rights organization." You use the term "purposive organizations." What's the difference?
A: In my lexicon, borrowed from political science, a civil rights organization protects minority viewpoints and principles. A purposive organization reflects a defined political or affiliational worldview. There is some overlap, but I do not believe that an organization that defends majoritarian affiliations, such as does Alliance Defending Freedom, represents minority views in the U.S. -- where Christians are in the substantial majority. Read their website, where they express their fears in dire, jihadist tones: "targeted attacks on religious liberty are more serious and widespread than you may realize. In courtrooms and schoolrooms, offices and shops, public buildings and even churches … those who believe in God are increasingly threatened, punished, and silenced." As a lifelong Catholic and student for the priesthood for eight years, I just do not agree.
Q: In the period covered by your book, much of the work of groups that care about religious students has shifted from advocating for religious colleges to advocating for religious students at public colleges. What concerns you about this trend?
A: Well, like Willie Sutton, they go where the money and action are. Many of the same groups that protest against Muslims and non-Christian faiths believe that they have the only keys to the Kingdom. The Christian Legal Society, for example, does not allow members of the Church of Jesus Christ of Latter Day Saints (Mormons) to become members -- averring that they are not Christian. Who gets to trademark Christianity? The large public colleges are where the vast majority of students enroll, so it is a natural inclination to run water over that rock. CLS v. Martinez [a case that challenged the right of a public law school to enforce its anti-bias rules] is one of the few cases where ADF stumbled and lost, although they have not given up and are trying to wear down colleges by aggressive follow-up. You have to give credit where it is due. They acknowledge that they took their inspiration from the LDF and MALDEF and other genuine purposive groups, but they have managed to victimize a majority religion into minority status, a false appropriation. In states where Anglos are no longer the majority, it will be interesting to see the extent to which the Amy Fishers of the world will claim minority protection.
Q: You have written extensively about the legal treatment of undocumented students. At this point, do you expect their treatment to be helped more by the courts or the political process?
A: Both routes are needed -- if we had immigration reform tomorrow, we would still need state DREAM Acts to provide resident tuition and financial aid to the undocumented. By the way, a number of these purposive conservative groups have both opposed affirmative action and state-level immigration policies that would accommodate the undocumented. But at the same time as the nativist and restrictionist movements have never been so evident or engaged in the polity, there is a demonstrable and generous accommodationist counter-revolution. How else to account for Utah, Nebraska, and other red states providing in-state tuition for these children? No conservative challenge to these tuition policies has ever prevailed in court, although Wisconsin Governor Scott Walker (R) rescinded his state’s resident tuition policy, after fewer than 300 students used it. (Now he appears to have gone to Damascus, and was knocked off his horse.)
Q: Many college administrators constantly complain that fear of litigation is a constant reality for higher education today. How could colleges protect themselves, or encourage an environment in which there might be fewer suits?
A: Some of these are inevitable, and good for the system. But I am amazed at how many silly suits there are, a number of them brought by aggrieved Christians, such as the freshman student at the University of North Carolina who went to federal court to try and get a book about the Koran banned at the UNC orientation. He could only bring such a suit, which he lost, of course, because the religious right wing does not really want discourse, no matter what it says, but it wants a sectarian state in which their activities are funded by all of us — and then it wants to controls who gets into the Garden of Eden. And this wasn’t even reading the Koran — which many Christians have never read, but despise — it was a book about the Koran. There is a strong scent of intolerance by some of these actors, and they behave in ways that many would consider unchristian. Colleges could do more to protect themselves by training administrators and faculty on the basics — I teach a number of such workshops, and am always struck by how many fundamental errors pop up in discussions, such as faculty who think they do not have to accommodate students with disabilities. There may be some excesses in this area of granting accommodations, especially in the area of legitimate evaluations for certain certifications, but this is a legitimate and irreversible tide, one that faculty would do well to understand. At the least, faculty and administrators should do no harm.