Legal issues

Q&A with author of new book on litigation and higher education

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Author discusses themes of new book on the courts and higher education.

At lawyers' meeting, show of support for shared governance

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At a gathering of college lawyers, campus leaders generally agree that institutions shun faculty role in governance at their peril.

Presidents in denial on use of race-based admissions preferences (essay)

Some time between now and the end of June, the U.S. Supreme Court will issue its ruling in a major case challenging affirmative action policies in higher education, Fisher v. University of Texas. Many legal observers believe a conservative court will significantly curtail or even eliminate the ability of universities to use race in admissions, but according to a recent Inside Higher Ed poll, college presidents are much more confident that the decision’s impact will be minor.

Which group is most likely to be correct?

In the case, Abigail Fisher, a white student, sued the University of Texas at Austin for using race in admissions decisions to boost the proportion of black and Latino students, contending it is a violation of the 14th Amendment’s Equal Protection Clause. UT argues that its use of race is permitted by the U.S. Supreme Court’s 2003 ruling supporting affirmative action at the University of Michigan Law School, Grutter v. Bollinger.

According to the Inside Higher Ed poll, by 77 percent to 23 percent, college presidents believe the U.S. Supreme Court will stop short of imposing "major limits on the consideration of race in the admissions process.” Some 51 percent of presidents suggest the court will impose only “modest limits” and 26 percent expect the justices to “uphold current policies.”

On one level, the confidence is understandable. In the earlier Supreme Court challenges – the 1978 Bakke case and the 2003 Grutter litigation – supporters of affirmative action managed to dodge the bullet. Despite dire predictions at the time, the Court ended up allowing universities to continue to employ race in admissions. Despite the unpopularity of affirmative action programs among the broader American public, the nation’s military, business and educational establishments managed to sway a narrow majority of justices in 2003, and more than three-quarters of university presidents expect the same thing to happen again in the Fisher litigation.

But this time around, the result may well be different for two reasons: the make-up of the U.S. Supreme Court has changed, and the on-the-ground experience with alternatives to affirmative action is more fully developed.

A decade ago, when the Supreme Court ruled in the Grutter case, Justice Sandra Day O’Connor cast the decisive fifth in favor of allowing universities to employ race in admissions. She has since been replaced by the much more conservative justice, Samuel Alito; Justice Anthony Kennedy, who dissented in Grutter, is the new swing justice.

One of Kennedy’s major objections to the Grutter decision involved Justice O’Connor’s handling of the rule that universities seek “race-neutral” ways of achieving racial and ethnic diversity prior to employing explicit racial preferences. This judicial requirement has long been in place under the theory that because the Constitution disfavors categorizing individuals by race, if universities can achieve racial diversity in another way (by, for example, favoring low-income students of all races), they should do so.

O’Connor’s Grutter opinion irked Kennedy because she said of the University of Michigan: “We take the Law School at its word that it would ‘like nothing better to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.” In dissent, Kennedy replied: “Were the courts to apply a searching standard to race-based admissions schemes, that would force educational institutions to seriously explore race-neutral alternatives. The Court, by contrast, is willing to be satisfied by the Law School's profession of its own good faith.”

Kennedy’s key concern is related to the second new development: evidence from a number of universities that race-neutral approaches can produce as much racial and ethnic diversity as using race per se. At the University of Texas, a lower court decision in 1996 banned the university from using race, so it adopted two race-neutral alternatives: a plan to admit students in the top 10 percent of their high school class (irrespective of test scores) and affirmative action for economically disadvantaged students of all races. These two plans produced a class that was 4.5 percent African American and 16.9 percent Latino in 2004, compared with a class that was 4.1 percent African American and 14.5 percent Latino in 1996, when race was last used. For Kennedy, Texas’s subsequent reintroduction of race in admissions is likely to be seen as unnecessary and therefore illegal.

More broadly, in an analysis of leading public universities where the use of race was dropped, my colleague Halley Potter and I found that in 7 of 10 cases, the use of race-neutral alternatives such as class-based affirmative action produced as much black and Latino representation as had the previous use of race.

Looking forward, the U.S. Supreme Court could take one of three paths: (1) keep Grutter in place and support the continued use of race; (2) overturn Grutter and declare the use of race illegal across the board, or (3) strictly enforce Grutter’s requirement that universities try race-neutral alternatives and only use race as a very last resort.

My expectation, based on Kennedy’s pivotal role, is that the court will go for option 3. On the surface, this might look like a “minor” limitation, applying only to universities that have Texas-type race-neutral alternatives already in place. But that is a mistaken interpretation. The principle requiring universities to vigorously pursue alternatives to racial preferences before using race would apply across the board. And in practice, such a rule would revolutionize the way universities admit students. 

Several studies find that universities now employ very large racial preferences (for example, increasing a student’s chances of admissions by 28 percentage points) and provide virtually no preference to low-income students. If the Court instead requires universities to use race-neutral alternatives primarily, and only employ race as a very minor factor to the extent alternatives don’t work, the effect would  be to flip the emphasis so that class counts a great deal and race counts very little, if at all.

Risk-averse lawyers advising admissions offices may in fact suggest that universities only employ race-neutral alternatives. That is what has happened for the most part in K-12 education, where a 2007 decision limiting the ability of school districts to use race in student assignment has seen some 80 districts shift the focus of integration programs from race to class.

In the event that the court severely restricts the ability of colleges to employ race, the Inside Higher Ed presidents’ poll suggest class-based alternatives are about three times as popular as Texas-style percentage plans (which are hard to apply to universities with national applicant pools.) If the right of colleges to employ race and ethnicity in admissions is scaled back, 11 percent of presidents agreed or strongly agreed they would drop standardized tests and 14 percent said they would adopt a policy to admit a top percentage of students from every high school in their state.

By contrast, enthusiasm for class-based affirmative action was stronger: 39 percent said they agreed or strongly agreed that they would place more consideration on applicants’ socioeconomic status; 42 percent would place more consideration on first generation status, and 43% would spend more on financial aid.  Evidence from states where affirmative action has already been banned suggests the percentages of universities that switch to class will be even higher.

Interestingly, then, a conservative Supreme Court decision requiring universities to pull back on racial preferences could pave the way for a more liberal set of policies: greater consideration of class in admissions, and the financial aid to back it up.

Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action and the coauthor (with Halley Potter) of A Better Affirmative Action: State Universities that Created Alternatives to Racial Preferences.

 

Lessons learned from the case of the lawsuit over a C+ (essay)

There were two major education stories in the news last week: one was the President’s State-of-the-Union call for a new rankings-and-accreditation program for colleges and universities. The other -- which seems almost humorous but which is just as serious -- involved a former graduate student suing Lehigh University over a grade. The story of Megan Thode and her court case, in which she asked for $1.3 million in damages stemming from a grade of C+, took America (and other parts of the world, including Australia and Great Britain) by storm; at the peak of the civil trial, the number of hits on Google reached over 95,000, including a sizable number from local news sources, which  provided extensive coverage of the trial.

After four days of hearing testimony, Judge Emil Giordano reached a verdict on Thursday, finding that there was neither a breach of contract nor sexual discrimination, the claims made by the plaintiff . And so for Megan Thode there would be no $1.3 million award -- nor a change in grade.

There are a number of reasons why Megan Thode became an Internet sensation. First, there’s the sinking, nightmarish response of anyone who has ever had a student or a student’s parent complain about a grade: there, but for the grace of the god of grades, go I. In fact, I have been haunted, over the last few days, by the vision of a former student who argued that his A- should have been an A gathering his accusations and preparing for a renewed assault.

And what about that student who needed a B for her education program but whose writing skills and her failure to improve had resulted in a C? Will she be inspired by Megan Thode’s asking for $1.3 million, the amount that Thode claims her C+ in a fieldwork class cost her?

There’s another reason for this “Grade Me Maybe” story going viral, and that is the reality TV/You Tube aspect: one person’s whining psychodrama is another person’s entertainment. Here was a welcome moment of comic relief, with a Sarah-Palin-like figure complaining that her teacher and school played a game of “gotcha.”

This wasn’t the first court case of its kind, in which a student attempted to sue over a grade.  This one, however, had enough rich elements to rival not only reality TV but "Downton Abbey," offering a generational family drama, with the patriarchal figure of the plantiff’s father -- Stephen Thode, an associate professor of business at Lehigh -- willing to sacrifice his own reputation for the sake of justice for his daughter. Megan Thode’s infant daughter was also a supporting player, appearing in photographs accompanying the story in various news venues.

Then there was the depiction of Thode as gay rights proponent, publicly shamed for her activism -- the victim of a woman instructor whose own sister is a lesbian. There was the equally spurious class aspect: Thode, a beneficiary of the institution’s generous benefits system, was taking on the private university, the object of Republican politicians’ ire. There was something for everyone here -- except, in the end, for Megan Thode. As the above-the-fold front-page headline of The Morning Call announced on Friday: “C+ in Classroom, F in Court.”

What was really on trial here was the fraught subject of standards. While there are exceptions, it is a fact universally acknowledged that, most often, the student who complains about a grade deserves that grade. Thode apparently regularly attended class, but did not participate in class discussions, despite the fact that the instructor stipulated early in the semester -- and in print -- that participation was required.

Silent attendance isn’t sufficient, as I explained to a student when I was a teaching assistant at Lehigh. As I pointed out to the protesting student, two pigeons had regularly appeared on the window ledge for every class meeting; they did not, however, receive credit, and the student, whose contributions had matched theirs, would not either. (Is that student, even now, cheered by this spectacle of his fellow alum? Is he feverishly -- and silently -- preparing his case? And what will the statute of limitations be for such cases? One year -- as is the norm at many schools? Three years, as in Thode’s case? Twenty years?)

Thode’s argument is that she needed a higher grade. Well, yes, she did -- but that did not mean that she was entitled to it. Almost anyone who teaches education classes has heard Thode’s refrain.  What she needed to do was earn it. Program requirements exist for a reason -- they certify that that the student in question demonstrated competency in the course area. Her instructor sent her a letter at the mid-semester point, outlining what Thode need to do; Thode ignored it. And when her grade reflected the consequences of her failure to meet the standards for a B, she might have investigated the option of repeating the course.

Instead, she took her complaint to two internal committees and when those did not find adequate proof to reverse the instructor’s decision, Thode and her lawyer launched a barely legal scattershot argument of equal parts personal vendetta on the part of the instructor and the then-director of the program and an unfair change in internship rules.

The result has been a courtroom scene reminiscent of the trials in Catch-22, with the instructor being asked such questions as whether she practices vertical or horizontal religion and Thode’s lawyer attempting to negotiate in the final moments of the trial, claiming that “it was never about the money” and asking the judge just to go ahead and change that pesky grade.

And so Thode’s case has disrupted the educational world, just as she herself apparently disrupted the class in question. For she wasn’t completely silent in class. Her behavior -- long before her case came to court -- smacks of the desperate student’s line of secondary defenses and attacks:  announcing a headache and calling for aspirin; crying; swearing, insulting the instructor -- doing everything, in effect, except what she needed to do to demonstrate her readiness for her professed career: to contribute in a meaningful way to discussions.

Her disruptive behavior in the classroom was unprofessional and uncivil. It’s also increasingly the norm in classes everywhere. Maybe that’s what we need to take away from this whole debacle -- a reminder that the classroom isn’t a soundstage for students desperately seeking unearned credit. Meanwhile, it’s clear that Thode -- tragically -- didn’t learn anything at all from her classroom experience, and as for that dream of someday being a licensed counselor, she pretty much destroyed that all by herself.

Carolyn Foster Segal is a professor emeritus of English at Cedar Crest College. She currently teaches at Muhlenberg College.

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Hundreds of people gather on Supreme Court steps to rally for affirmative action

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Hundreds of people gather on Supreme Court steps to demonstrate their support for the University of Texas and affirmative action.

Blogs aim to bring light to hateful speech online

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Blogs at two universities aim to promote tolerance by highlighting insensitive and offensive comments posted on social media.

Federal privacy law should be deemed unconstitutional (essay)

We’ve known for a long time that the federal student privacy law, the Family Educational Rights and Privacy Act (FERPA), is disastrous for public accountability. Now we know that it’s almost certainly unconstitutional as well.

The threat of financial ruin that theoretically accompanies a FERPA violation – theoretically, because in the 38-year history of the statute, no one has ever been penalized for violating it – causes schools and colleges to irrationally withhold information from the public on the grounds of “educational privacy.” Even if the information is neither educational nor private.

Colleges have invoked FERPA to withhold records as benign and non-confidential as lists of athletes on scholarship and tape recordings of Student Senate meetings. And FERPA has become the default excuse to conceal wrongdoing by coaches, boosters or athletic-department tutors.

But the end of FERPA’s stranglehold on public records is in sight.

In National Federation of Independent Businesses v. Sebelius (the “Obamacare” ruling), the Supreme Court struck down a federal statute that conditioned federal financial subsidies – in that case, Medicaid funding – on complying with Congressionally mandated conditions.

The Court’s primary opinion, authored by Chief Justice John Roberts, traced the history of challenges to Congress’s authority to dictate policy through the Spending Clause in Art. 1, Sec. 8 of the Constitution.

Conditions attached to federal spending have been upheld as constitutional, the chief justice wrote, when they amount to “relatively mild encouragement,” such as the requirement to increase the drinking age to 21 as a condition of receiving federal highway aid.

But in this case, Roberts wrote, the coercive bargain – to greatly expand the rolls of Medicaid-eligible patients or forfeit every dollar of federal Medicaid funding – simply went too far: “[T]he financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’ — it is a gun to the head.”

Mr. Chief Justice, meet FERPA.

The 1974 federal privacy statute, which requires all schools and colleges receiving federal money to enforce policies safeguarding the confidentiality of students’ “education records,” carries a (theoretical) wallop that is comparably knee-buckling to Obamacare’s: Violators forfeit their eligibility for federal education funding.

The federal government contributes 10.8 percent of the cost of K-12 public education in America. While the percentage of direct support is less at the postsecondary level, ineligibility for federal funding includes life-sustaining Pell Grants, a $35 billion-a-year program.

Because the Department of Education knows that withdrawing federal money would amount to burning the proverbial village to save it, the DOE has never come close to imposing the “fiscal death penalty” on a FERPA violator. In fact, it has enacted regulations to make certain that no school will ever be de-funded simply for honoring a public records request.
    
If documents are released in violation of FERPA, the DOE issues a “compliance plan.” Only if the department determines that the school will not voluntarily comply can financial penalties be imposed. (The Supreme Court has ruled that families aggrieved by the release of their records cannot sue under FERPA, so DOE sanctions are the only penalty.)

Congress enacted FERPA with good intentions: to keep misleading records of aptitude tests or disciplinary scrapes from coming back to haunt young people. FERPA entitles families to see these records on demand, to challenge their accuracy, and to insert clarifying material. And it makes those same records confidential for everyone but the family.

But FERPA went awry when it became the catch-all excuse for every school or college that finds disclosure inconvenient or embarrassing.

The default assumption under the law of every state and of the federal government is that individuals’ interactions with government agencies are a matter of public record and are subject to disclosure. Thus, when a person applies for a construction permit, receives a traffic ticket or incorporates a business, those transactions are transparent – even if the individuals involved would prefer otherwise – so the public can assess how government agencies are performing.

Public records are what enabled reporters from the Los Angeles Times to document massive waste and mismanagement in the L.A. Community College district’s $5.7 billion construction program. They’re what helped Chicago Tribune reporters document the existence of a backdoor admissions system for the underqualified children of VIPs at the University of Illinois, a scandal that helped topple UI’s president and most of its trustees.

Regrettably, school attorneys have become well-practiced at invoking the federal-funding bogeyman – at times in confoundingly frivolous ways – when faced with a demand for information they’d prefer to keep concealed.

In July, the Iowa Supreme Court denied a newspaper’s request to compel production of public records relating to the University of Iowa’s internal investigation of how rape accusations against two Hawkeye football players were handled.

The victim’s family complained that the university dragged its feet in investigating the attack. An independent law-firm investigation confirmed wrongdoing that led to the firing of two university vice presidents.

The players’ names have been in the national news for years; one pleaded guilty to assault and the other was convicted at trial. Yet the Iowa court put their “privacy” interests – in being felons – ahead of the public’s interest in memos and correspondence that could shed light on how Iowa responded to the victim’s complaints.

Because it’s possible to read FERPA to produce such absurd results – a literal reading of the statute makes “education records” absolutely confidential even if everything in them is already widespread public knowledge as a result of the student’s own criminality – it’s time to sweep the statute into the dustbin and start over.

Based on the Court’s June 28 ruling in NFIB, there are seven likely votes to invalidate FERPA. Dissenting Justices Anthony Kennedy, Antonin Scalia, Clarence Thomas and Samuel Alito used even stronger language than Roberts and his two co-signers in condemning the Medicaid expansion mandate: “If the anticoercion rule does not apply in this case, then there is no such rule.”

The dissenting justices even helpfully pointed out that, after Medicaid, the second-largest federal aid program is education, accounting for 12.8 percent of all federal assistance to states and 6.6 percent of the average state’s total yearly expenditures.

So, do states have a meaningful opportunity to accept or refuse education funding? Let’s ask America’s colleges and universities.

In 2011, the head table of American higher education weighed in behind the University of Illinois in a dispute with the Chicago Tribune over records of its secretive “clout admissions” program.

A federal district court decided that FERPA was no excuse for withholding the documents the Tribune sought. In a ruling that has since been vacated on appeal, the district judge ruled that FERPA is not an outright prohibition on disclosure, since a college can choose to accept or reject federal funding.

In the university’s successful appeal to the Seventh Circuit U.S. Court of Appeals, the American Council on Education and nine other education groups filed a supporting brief arguing that FERPA is, to use Justice Roberts’ words, “a gun to the head” of their member institutions.

They noted that 19.1 percent of the University of Illinois’ operating revenues comes from Pell Grants and other federal sources, the loss of which would be crippling if not fatal.

“As a practical matter, [educational] institutions have no real ‘choice’ in the matter as the federal government is the single largest provider of student loans and other student financial assistance for higher education, which funding serves as a central component in each institution’s budget,” the groups argued. “Given the fact that federal education funding comprises such a significant percentage of a school’s total operating revenue, the District Court’s conclusion that schools can simply discontinue receipt of those funds is not grounded in reality.”

Indeed, in its Supreme Court brief in NFIB, the government expressly cited FERPA as a Spending Clause condition analogous to the challenged Medicaid expansion – a condition that, if the Medicaid expansion fell, would be thrown into question.

FERPA is a “dead statute walking.” It relies on a coercive funding threat indistinguishable from that just declared unconstitutional in NFIB. Having acknowledged as much in the Illinois case, colleges and schools cannot retreat from that position when the inevitable constitutional challenge arises.
    
To be clear, striking down FERPA will not throw open genuinely private records that everyone agrees should be kept confidential. Grades, minor disciplinary scrapes and other non-newsworthy information still may be kept secret, because open-records statutes exclude information that clearly invades personal privacy.

With FERPA off the books, schools and courts will be free to make common-sense judgments as to when privacy has been waived – for instance, when a nationally known athlete admits committing a crime – and secrecy serves no rational purpose.

This balancing test – weighing, case-by-case, personal privacy against the community’s interest in disclosure – is the right way to protect legitimate confidences while giving the public the information essential to evaluating how its schools are being managed.
 

 

Frank D. LoMonte is a lawyer and executive director of the Student Press Law Center, a nonprofit organization based in Arlington, Va., that supports greater transparency in schools and colleges.

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Publishers will appeal district court's decision in e-reserve copyright case

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Publishers say they will appeal district court ruling on landmark Georgia State copyright case, raising the stakes on a case that could set bar for fair use and digital library reserves.

Library groups see double standard in Authors Guild's stand against HathiTrust

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Academic library associations try to use Authors Guild's position in the Google Books lawsuit to undercut its stand against HathiTrust.

Library association releases 'best practices' for avoiding copyright suits

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Association of Research Libraries spells out principles and best practices for making copyrighted materials as free as possible while avoiding lawsuits.

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