A federal appeals court’s recent decision demonstrates how even an eminent jurist can be confused by the complex regulatory system established by the Higher Education Act, with potentially significant negative consequences for colleges and universities.
In United States ex rel. Main v. Oakland City University, Judge Frank Easterbrook of the U.S. Court of Appeals for the Seventh Circuit authored an opinion for a three-judge panel that reversed a District Court decision and permitted a qui tam action to proceed under the False Claims Act. In that action, a former director of admissions for a university contended that the institution had violated the prohibition in the HEA and the U.S. Department of Education’s implementing regulations against paying incentives for enrolling students.
The False Claims Act is aimed at obtaining restitution to the government of money taken from it by fraud, and liability under that Act occurs when someone presents to the government a false or fraudulent claim for payment. In a qui tam action, a private individual -- the “relator” -- files a lawsuit seeking this restitution. The government may decide to take over the case, and the relator may obtain a financial reward if the action is successful.
Qui tam cases are a mixed bag. On the one hand, the government obtains the assistance of private individuals to extend its investigative and litigation resources to protect the integrity of government programs. On the other hand, given the vast array of federal programs and the volumes of requirements that result from them, qui tam actions offer fertile ground for trial lawyers seeking a supply of new business and a potent weapon to force settlements from organizations that participate in government programs. The key, of course, is for the courts to scrutinize these actions carefully and to circumscribe them to achieve the purposes of the False Claims Act.
This is what Judge Easterbrook’s opinion failed to do. His failure is all the more surprising in light of his reputation not only as a highly capable jurist, but as a conservative one presumably skeptical of broad constructions of federal law that fuel the litigiousness of the plaintiffs’ bar.
Fundamentally, Judge Easterbrook’s opinion simply got wrong crucial aspects of the regulatory structure established by the HEA. The opinion failed to understand the distinction between eligibility and participation in the student aid programs.
An institution establishes its eligibility under the HEA by filing an application with the Department of Education. However, an institution need not actually seek participation in the HEA student aid programs in this application. It may simply wish to be designated as eligible to participate because that status has significance apart from gaining access to the financial aid funding available to its students under Title IV of the HEA.
Furthermore, the application does not require the institution to certify its compliance with all HEA requirements. The eligibility requirements are more limited and, as pertinent to the Oakland City case, nowhere include any certification by a college that it complies with the incentive compensation prohibition.
Only when an institution seeks to be certified to participate in the student aid programs does it agree to comply with the many participation requirements applicable to those programs. It does so by signing the Program Participation Agreement (PPA), which does include a representation that it will not violate the incentive compensation prohibition. Even then, however, the institution has made no actual claim for federal funds. That may occur only when it helps students apply for Title IV loans and grants.
Judge Easterbrook dismissed this structure as “paperwork,” and this led him into error. Thus, early in the opinion, he stated that the university had assured the Department of Education in its eligibility application -- what he calls the “phase one application” -- that it would comply with the rule against incentive compensation. But, as noted above, that is simply wrong -- a college does not agree to comply with the incentive compensation rules until it formally seeks certification to participate in the program.
Easterbrook then went on more critically to state that the “phase two” application -- presumably the PPA and subsequent student applications for Title IV funds -- depended on the finding that the university was eligible and that the university could not be eligible if it knowingly violated the incentive compensation rule.
That too is wrong. The Department of Education has the discretion to use a variety of remedies in the event that it believes an institution violated a participation requirement like the incentive compensation rule. These include placing an institution on the reimbursement method of receiving Title IV funds, or requiring repayment of funds, fines, and provisional certification. To be sure, the department may also seek to revoke the institution’s eligibility, but it is not compelled to do so. In contrast, the department must revoke eligibility if a true statutory condition of eligibility is no longer met, such as accreditation by a recognized accrediting agency or state licensure.
Yet, Judge Easterbrook stated that “[i]f a false statement is integral to a causal chain leading to payment, it is irrelevant how the federal bureaucracy has apportioned the statements among the layers of paperwork.” This conflation of the requirements in a complex regulatory structure like the HEA can only fuel False Claims Act qui tam litigation, since now, based on Judge Easterbrook’s erroneous understanding of how the HEA works, any alleged violation can serve as the basis for relators and, more realistically, their enterprising counsel to sue.
By failing to grasp the distinction between eligibility and participation, his opinion, on behalf of one of the leading federal Courts of Appeals, may dramatically increase the vulnerability of institutions of higher education to a whole new species of lawsuits: False Claims Act qui tam actions alleging knowing violations of one of the myriad requirements in the HEA and implementing regulations. The danger of such litigation will be heightened by the threat of treble damages under the False Claims Act.
It was precisely this danger that another federal court recognized in a qui tam case involving the same incentive compensation requirement ( United States ex rel. Graves v. ITT Educational Services, Inc.). That court, following the teaching of the Supreme Court and five U.S. Courts of Appeals in an extensive and well-reasoned decision that recognized the relevant distinctions in the HEA structure, understood that False Claims Act liability attaches not to the underlying allegedly fraudulent activity, but to the claim for payment. Judge Easterbrook’s opinion noted this case, which was squarely on point to the case before him, toward the end of his brief opinion. However, he gave it short shrift because it was decided by a district court judge (it was affirmed without opinion by the Fifth Circuit).
Judge Easterbrook seems to have had some inkling of the flood of litigation that his opinion may cause. In discussing the ITT case and Oakland City University’s protests that any purported regulatory violation in a funding program could require litigation in a False Claims Act suit, he took refuge in the requirement that the violation must be “knowing.”
As he stated, “[t]ripping up on a regulatory violation does not entail a knowingly false representation.” That is no bulwark against abusive plaintiffs’ attorneys. It will not be hard to plead a knowing violation, survive a motion to dismiss, and subject institutions to extensive discovery aimed at determining whether someone acting on their behalf “knew” that they planned to violate one of the many requirements of doubtful specificity in the HEA and the voluminous Department regulations.
Judge Easterbrook’s bland assurances that they will ultimately prevail will be cold comfort later after thousands of dollars of legal fees, extensive distractions from their missions of educating students, and smears against their reputations in the news media. Unless Oakland City is reversed, it is Judge Easterbrook and the Seventh Circuit who have unfortunately tripped up.
Mark L. Pelesh
Mark L. Pelesh is executive vice president for legislative and regulatory affairs for Corinthian Colleges, Inc. He was formerly the head of the Education Law Group at Drinker Biddle & Reath in Washington, and specialized in the Higher Education Act and U.S. Department of Education regulations.
Whether we’re aware of it or not, the doctrine of “fair use” built into copyright law is one of the most important protections available to scholars, librarians, and students. Every time you quote from someone else’s work, every time you photocopy an article for a student, every time you read a passage aloud to your class, you are technically in violation of copyright.
The reason that an army of publishers and FBI agents aren’t smashing down your office door is that U.S. jurisprudence has long understood that a totalizing approach to copyright would be disastrous. Fair use is the only way we as individuals can together do what is fundamentally a collective endeavor, scholarship, in an information ecology that otherwise lives and dies by the intensely individualizing force of the marketplace.
But fair use has been carrying a heavy load lately, and it’s starting to show its limitations. Over the last few decades and especially amid the recent “copyright wars,” a powerful new philosophy has emerged: Rather than seeing copyright as a careful balance between the interests of private owners and the public, powerful content industries have argued that robustly protecting private interests is always the best way to serve the public. It’s the trickle-down theory of knowledge: Give the power to the producers and get out of the way, and it will eventually get to everyone who needs it. And digital technologies have handed copyright owners further power to regulate the use of their work, to further commodify information in ways never before imagined.
While most of us in higher education are little content industries ourselves, we should not be seduced into forgetting our role first and foremost as the keepers, distributors, and developers of our society’s body of public knowledge. We must fight for the promise copyright made to the public: All these economic rights are only in the service of intellectual progress. However, our rhetorical arsenal in this battle seems to be only to trot out fair use, i.e. the right to violate copyright for progressive reasons. Technical copy protection? Don’t forget about fair use. Restricting peer-to-peer networks? Don’t forget about fair use. Suing our students for downloading? Don’t forget about fair use. Automatic permission systems in educational courseware? Don’t forget about fair use. It’s a wonder the poor statute can barely stand, considering how often it is invoked as defense, criticized as folly.
This dependence on fair use, to somehow safeguard all of the myriad “public interest” elements of copyright’s balance, risks crushing it altogether -- no more so than in the pending battle around Google Book Search.
For those who don’t know, the search engine giant recently announced its aspiration to digitize every book ever printed. To do this, it partnered with the university libraries of Stanford, Harvard, Michigan, and Oxford, and with the New York Public Library. Together they have already begun the process of digitizing works whose copyright protection has run out -- right now, those published before 1924. These books would be full-text searchable and could be read in their entirety online, for free. For more recent books still protected under copyright, Google intends to digitize and make them searchable as well; however, the text returned in response to the search query would only be a short excerpt around the located word or phrase. Publishers who don’t want their work to appear at all can opt out of the system. Links will lead users to vendors where the book in question can be purchased.
To be clear, Google’s project does require making copies of numerous copyrighted books, and an unauthorized copy at that. Google says this copy is a fair use. And in lawsuits brought in September and October of 2005, the Author’s Guild ( complaint) and the Association of American Publishers ( complaint) argue it is a violation of their rights, and an attempt to unfairly capitalize on their work.
Unlike battles around digital music that have occupied the courts’ attention of late, this case will be of vital importance for the academic community. What is at stake is the possibility of a digital database of all written knowledge, and the question of who gets to produce it and under what conditions. Some think this is the Library at Alexandria finally realized; others think it's risky to have just one company running the stacks. But the case will live or die not on the question of the value of such a database to users, but on the narrower legal question of whether Google has the right to scan the books to begin with.
Perhaps this case will settle -- Google certainly has the funds to do so if it chooses. If it does get heard by the courts, what is of greatest importance, I believe, is how well the doctrine of fair use can carry the weight of this particular dispute. Lawrence Lessig has argued that fair use is being stretched thin because copying is so fundamental to the digital environment; uses that never even rang copyright’s bell, because they now require a copy to be made in the process, find themselves under legal scrutiny. I believe this is true. But fair use has already been pulled in too many directions, well before the Internet stretched it to its breaking point.
Fair use has a century-long history in U.S. courts, as a handy way for judges to stave off copyright claims when the use in question is socially valuable. At first, it was a way to protect small amounts of copying for the sake of criticism; as Justice Story noted in Folsom v. Marsh (1841), “no one can doubt that a reviewer may fairly cite largely from the original work, if his design be really and truly to use the passages for the purposes of fair and reasonable criticism. On the other hand, it is as clear, that if he thus cites the most important parts of the work, with a view, not to criticize, but to supersede the use of the original work, and substitute the review for it, such a use will be deemed in law a piracy.”
As such, one of the important criteria used by the courts to judge a use fair has been whether the new work is “transformative,” rather than merely replacing the old. The most famous of these is Acuff-Rose v. Campbell (1994), in which a surprisingly culturally savvy Supreme Court found that 2 Live Crew’s sampling of the Roy Orbison classic “Pretty Woman” was a kind of parody, however crude, and should be protected as fair -- it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
However, when fair use was finally codified in 1976, the primary motivation was not to protect criticism or parody but to accommodate the increasing use of the Xerox machine, particularly in education. University libraries did not want to risk liability when they made copies of journals and book chapters for faculty and students, and aggressively lobbied Congress for some legal protection to do so. When fair use became law, it included the four factors that had developed through court precedent, but also specified “multiple copies for classroom use” alongside parody, criticism, journalism, and scholarship as the likely contexts for the use to be considered fair.
Making multiple copies of an article for use in the classroom does not claim to produce a new work, in the way that sampling Orbison’s tune does. The value of the use is not that it is “transformative,” but that it is “distributive.” Now fair use is saddled with two aspirations. If the first understands that new work often needs to lean on and borrow from existing work, the second understands that the market mechanisms and distribution technologies that circulate work do not always achieve the scope and access we would like, or that other socially valuable activities require.
The courts have since used fair use in this ‘distributive’ sense, allowing cable TV to retransmit copyrighted broadcasts to audiences who could not otherwise receive them, prohibiting Kinko’s from producing course packets without paying a fee but leaving open the possibility that universities could do so as long as they do not enjoy direct commercial gain, and most notably in Sony v. Universal (1984), granting VCR manufacturers immunity to copyright penalties because some VCR users do make unauthorized copies of protected movies. The court argued that users have the right to record shows in order to watch them at other times, that this in fact “enlarges the television viewing audience” -- even the beloved Mr. Rogers testified that he wanted public school teachers to be able to tape his show and show it in class the next day. Again, these fair uses are not transformative, but distributive.
Is Google’s book search project fair use? This was the question vigorously debated, but by no means settled, at the recent “Battle over Books” debate at the New York Public Library and the blog-off that followed. Most copyright watchers largely agree that, if it makes it to court, the legal answer will come down to a battle of precedents. (See, for example, Jonathan Band’s “The Google Print Library: A Copyright Analysis.”) Google will come out on top if the court sees the case as akin to Kelly v. Arriba-Soft (2003), which allowed an image search engine to copy images from the Web so as to make thumbnail versions available to user queries.
The publishers and authors will likely triumph if the court turns to UMG Recordings et. al. v. MP3.com (2000), where MP3.com was found to be infringing when it made single copies of 400,000 CDs in order to stock a digital locker from which users could stream music they could prove they already owned. Google needs fair use to accommodate an activity that is neither “transformative” in the classic sense, or “distributive” in the Sony sense. Neither precedent did either, and the solutions were work-arounds to force the square pegs of searching and streaming in the oddly-shaped hole fair use offers them.
Let’s give fair use a break by sending in a legislative relief pitcher, one that can better allow for the role search engines play in facilitating the circulation of digital information. If fair use has been protecting both ‘transformative’ and ‘distributive’ uses, today we need a statute that can cover the kind of “indexing” uses that Google is after.
If we recognize that the Internet offers us the chance to make much more of our society’s culture and knowledge available to more people, and we recognize that to make this massive resource most useful requires ways to navigate and search it, and we further recognize that search engines like Google need to make copies of that work in order to make it searchable, then we have a genuine and reasonable public interest in ensuring that that they and others can do so. At the same time, we should also ensure that doing so doesn’t undercut the possibility of selling these works, and ideally should help their sales.
The publishers’ concern is not that Google shouldn’t make books searchable, but that they should have to pay a fee to do so. Such a fee represents the compensation not for lost sales, but to match what they might have earned had they provided this search function themselves. So let’s imagine that they do just that; Harper & Collins has already announced that it will develop a digital database of their books, following the lead of academic journal publishers like Sage. We could decide that this is a reasonable exploitation of one’s copyright, and forbid Google from building a library.
What this is likely to produce is a bunch of different, publisher-specific archives, all searchable under different criteria in different ways, all with different rules for how much text you can view and under what conditions -- and price. Smaller publishers will be less able to afford to do any of this, so once again we will be incidentally privileging those represented by the larger publishers when what we want is all work to be as available as possible.
And all publishers will be in a position to exclude some of their works from public view, for whatever idiosyncratic (or, more likely, financial) reasons they fancy. Perhaps someone would develop a meta-search that could query many of these archives simultaneously and return the results together -- in all likelihood, it would be Google. But this does not solve the systemic problem posed by letting publishers also govern access to their content.
What I think we’re after is something more straightforward, but nearly impossible to achieve. In this dream scenario, every author would make his or her work available in a digital form that is searchable but cannot be redistributed, in a widely compatible format, marked with the same kinds of metadata. We wouldn’t need Google Book Search, because these book “footprints” would all be online and available for searches just as Web sites are. But this is certainly an unreasonable and prohibitive request to make of authors, at least right now. For all intents and purposes, this is what Google seems willing to provide for us, with the promise of some ad revenue in return. As a less than perfect version of that ideal, it’s quite good.
Waiting for fair use to shield this expanding range of uses is slowing the innovation in information, knowledge, and culture the Internet seems ready to facilitate. And every time it does, we risk a court setting a retrograde precedent that cements digital culture into place for good. We need a new statute that acknowledges and accommodates the common sense recognition that search is good, that it requires incidental copying, and that it should not be left to individual, competing publishers to make their work part of the public trust.
In a moment when we are handing content owners much more control not only over the use of their work but over access to it, we need to make a parallel commitment to ensuring and expanding access of a different kind, as an aggregate collection of all things thought and written that can be easily explored. And, we need to let fair use protect the activities it’s designed to protect, instead of letting it fray as it stands in as the only protection against a locked and licensed digital world.
Tarleton Gillespie is an assistant professor in the Department of Communication at Cornell University, and a Fellow with the Stanford Law School Center for Internet and Society.
The Supreme Court’s refusal to hear the appeal in Hosty v. Carter lets stand a disastrous decision by the U.S. Court of Appeals for the Seventh Circuit that threatens the autonomy of campus newspapers. And although the decision directly applies only to Wisconsin, Indiana, and Illinois, it will be used by public colleges across the country to censor student expression.
The Hosty case dealt with the administration’s prior restraint of a student newspaper at Governors State University, whose officials had been criticized by the publication. But the ruling will have an enormous impact on college students’ rights. The ruling marks the first major backward step in legal protections of the rights of college students, and it may be the start of an ominous trend. If student-funded newspapers can be censored, then so can student-funded speakers. In loco parentis, the legal concept giving administrators the power to regulate college students as a parent controls immature children, is making a comeback for the first time, decades after it was killed in the 1960s.
The global protests over these drawings have given us the horrifyingly un-ironic term “cartoon death count.” But in America, the key question is whether newspapers should print offensive content, especially when that content itself is in the news. Most American newspapers have refused to reprint the cartoons -- despite their importance in the news, claiming that readers can understand the cartoons without seeing the images.
Perhaps it’s no coincidence that most of the campus newspapers that have published the Danish cartoons are at public colleges in the Seventh Circuit, including The Daily Illini (University of Illinois at Urbana-Champaign), The Indy (Illinois State University), The Northern Star (Northern Illinois University), The Communicator (Indiana University-Purdue University at Fort Wayne), and The Badger Herald (University of Wisconsin at Madison). The Hosty case has raised the awareness of student journalists at these campuses, and perhaps made them more sensitive to issues of freedom of the press that are central to this debate.
Sensitivity is the question at stake with regard to the Danish cartoons. Should we be sensitive to the feelings of Muslims who have a sincere religious opposition to visual depictions of Muhammad? Or should we be sensitive to news values that dictate that our first instinct should never be to conceal something from our readers?
As the author of an article that included the controversial Danish cartoons in The Indy, an alternative newspaper at Illinois State University, obviously I have taken a stand on this question. It’s unfortunate that Muslims are offended by these images. But once anyone’s sense of being offended becomes the standard for determining publication, we will have lost much of the liberty essential for a free press.
The principle of freedom of the press holds that these decisions should be made by individual newspapers without government intimidation. But the Hosty ruling now gives administrators the power to impose bans on cartoons such as this, and we can only imagine how many college newspapers will face censorship -- and how many student editors will think twice about printing a controversial story or cartoon.
Of course, the fact that it is legal to print cartoons doesn’t necessarily mean that it’s a good idea. However, the attempts to suppress these cartoons by violence and censorship have made this a question of free expression. It is important for journalists to publish these cartoons no matter how offensive they are, to make the point that journalists should not be intimidated. Newspapers have a duty to print offensive images when they are newsworthy, whether these images are offensive cartoons, or Abu Ghraib torture photos, or the bloody victims of suicide bombers. Sensitivity is reflected in how we react to the racism directed at Muslims, not in our willingness to censor news in order to appease religious traditions.
At a time when media consolidation makes the mainstream media more and more reluctant to offend anyone who might threaten the bottom line, student journalists are the ones who can stand in defense of true freedom of the press. The fact that more student editors than professional ones have dared to print the cartoons should be a matter of quiet disgrace -- not for the students, but for the professionals.
But the Hosty case puts liberty of the campus press at risk. Even if few colleges openly crack down on student newspapers, the threat will always be there. And self-censorship is the greatest danger under a repressive regime. In the wake of the Hazelwood decision by the Supreme Court, which now applies in the Seventh Circuit to colleges, the high school press has been devastated by censorship. Principals across the country routinely censor even the most modest attempts at critical journalism, and many more student journalists simply give up because of the knowledge that they are not free to publish important work.
The response to the cartoon has already brought censorship on campuses. In Canada, Saint Mary’s University philosophy professor Peter March posted the cartoons on his office door, prompting the university to ban them. At Century College in Minnesota, an adjunct instructor who posted the cartoons on a bulletin board was told by a department chair not to replace them after they were ripped down. Other have suffered worse consequences. The Danish editors have faced death threats.
Cartoons have often had a remarkable ability to offend, and the right to print offensive images is fundamental to our constitutional rights. In the 1973 case Papish v. Curators of the University of Missouri, a graduate student was expelled for "indecent conduct or speech" because she handed out a newspaper, The Free Press Underground, that showed a cartoon of a policeman raping the Statue of Liberty. The Supreme Court made the case a cornerstone of student rights and ruled, “the mere dissemination of ideas -- no matter how offensive to good taste -- on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Now it can be shut off -- for decency, or any other reason.
Cartoons have frequently caused controversy on campus. In 2001, the University of California at Berkeley’s Daily Californian sparked protests because of a cartoon mocking the 9/11 terrorists by depicting them in hell. In 2002, a syndicated Oliphant cartoon showing Muhammed at a cocktail party sparked outrage when Purdue University’s student newspaper printed it. Other cartoons have caused protests or censorship because they mocked university officials or utilized racial stereotypes. In 2005, the University of Illinois’ Daily Illini suspended a cartoonist, Matt Vroom, because of one of his offensive cartoons was deemed anti-Semitic and got published accidentally.
The Daily Illini has also been the focus of debate over publishing the Danish cartoons. After Muslim groups protested the decision, the publisher suspended the editor-in-chief and the viewpoints editor (ostensibly for violating “process” by failing to consult other editors, although it’s hard to imagine any other topic where anyone would object to the viewpoints editor running a column by the editor-in-chief). The Daily Illini followed this up by enacting a new policy banning discussion of the newspaper on blogs by any students who work for the paper.
This incident is particularly troubling because it foretells what could happen to many more editors who dare to offend. The Daily Illini is an independent corporation unaffiliated with the University of Illinois. In theory, this should mean greater freedom. But independence means that these editors have no First Amendment protections against their overseers, as campus newspapers had until the Hosty case. As a former Daily Illini columnist, I can only view with sadness the idea that freedom of the press is being sacrificed at my alma mater on the false altar of religious tolerance.
College administrators have now been given the legal authority to censor any activities funded with student fees, which could have dramatic consequences. If sensitivity to Muslims (or any other group) becomes the prevailing standard, will right-winger Ann Coulter be banned from campuses? Speaking on Feb. 10 at the Conservative Political Action Conference (where Dick Cheney and Bill Frist were also prominent speakers), Coulter declared: “I think our motto should be, post-9/11, raghead talks tough, raghead faces consequences." Although Coulter is an ugly racist, her sickening views need to be countered, not prohibited. However, the first step in condemning Coulter is to repeat her horrible words. If we want to condemn someone, whether a cartoonist or a writer, we must first see the work. And then we must understand that critique, not censorship, is the only way to convince people to comprehend the truth.
The College Media Advisers proclaimed in response to the Supreme Court’s refusal to consider an appeal, “It is now all the more imperative that student publications establish clear operating guidelines as designated public forums, if they already haven’t.” The presidents at Illinois State University, the University of Southern Indiana, and the University of Wisconsin at Platteville have signed declarations protecting freedom of the press on their campuses, but according to the Student Press Law Center, more than 75 public colleges in the seventh circuit have taken no action. Advocates of liberty on college campuses need to convince these campuses to protect their student newspapers, and they also need to persuade state legislators to pass “reverse Hosty” laws to protect the rights of students at campuses like Governors State University that will never voluntarily grant First Amendment rights to their students.
Some critics may see the decision by campus newspapers to reprint these cartoons as a good reason to impose more control by administrators over students. But even those who see publishing the cartoons as a terrible error must understand that the liberty to make mistakes is essential in a free society. It is also essential for students to learn. At campus newspapers across the country, the cartoon controversy has been a tremendous learning experience for student editors, whether they decided to print the cartoons or not. They have learned something about Muslims, and about whether it is wise to offend readers. And, sadly, student editors have learned in the past month that freedom of the press is not so secure as they might wish.
It should not be the case that a victory for the Department of Defense is a defeat for academic freedom, but such is the outcome of Rumsfeld v. FAIR, which the U.S. Supreme Court decided Monday in an 8-0 ruling favoring the government.
FAIR is the Forum for Academic and Institutional Rights, a group of prominent law schools whose policies forbid discrimination based on sexual orientation and other factors. FAIR sought to restrict, not prevent, military recruitment because the military’s discriminatory policy of “don’t ask, don’t tell” is aimed at gays and lesbians.
The U.S. military, on the other hand, supported by the Solomon Amendment, claims that its rights to see potential recruits in law schools and, indeed, in all other components of the university, trump the rights of universities to be true to their mission. The Solomon Amendment was first passed in 1995 by Congress and has been revised three times since, with each revision placing greater pressure on universities to give military recruiters less restricted access to students or face the prospect of losing all federal funding.
FAIR’s mission is “to promote academic freedom, support educational institutions in opposing discrimination and vindicate the rights of institutions of higher education.” This is “starry-eyed idealism,” according to one Congressman who supported the Solomon Amendment that “comes with a price” -- lose all federal funding unless you support the military’s discriminatory policy.
In some circles, such threats are called extortion, but coming from the government they are called “funding leverage.” The roughly $35 billion in federal money now going to universities would be lost if any component of the universities -- e.g., law schools or medical schools or education schools -- defied the Solomon Amendment.
For Chief Justice Roberts extortion is not “compelled speech” because all the government seeks to regulate is “conduct.” I liken this to my mother’s threats of denying me dinner following my making a reasoned objection to some unjust parental rule: it is your conduct, son, not the logic of your argument that offends; obey or no dinner.
As a child, I lacked the autonomy that universities have traditionally enjoyed in the United States. Institutional autonomy was described by the Global Colloquium of University Presidents, which met a year ago at Columbia University, as “the guarantor of academic freedom.” Institutional autonomy includes “the right of the university to determine for itself, on academic grounds, who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
The Roberts court ignores this tradition of academic common law and instead asserts that universities are “free” to determine their mission, including one that forbids discrimination, but only if they are willing to forgo access to the people’s money, the very funding that subsidizes new knowledge, new discoveries, and new policies, all for the purpose of assisting the public good.
The not insignificant crumb the Court did offer the academy in its Solomon [not Solomonic] ruling is the right of the academy to protest when military recruiters visit campus. Campus communities should vigorously exercise that right until such time as the US military changes its anti-discrimination policies to accord with the more enlightened of the academy.
Roger W. Bowen
Roger W. Bowen is general secretary of the American Association of University Professors, which filed an amicus brief in support of FAIR.
In response to the scandal surrounding the men's lacrosse team, Duke president Richard Brodhead has initiated a "conversation on campus culture." The first installment provided little insight. To Mark Anthony Neal, a professor of African and African-American Studies, recent events showed that "we need an innovative and brave curriculum that will allow our students to engage one another in a progressive manner." It's worth remembering that only two years ago at Neal's institution, a department chairman jokingly explained the faculty's ideological imbalance by noting, "If, as John Stuart Mill said, stupid people are generally conservative, then there are lots of conservatives we will never hire." It seems rather unlikely that Duke's curriculum lacks a sufficiently "progressive" nature.
Indeed, far from needing a more "progressive" campus culture, the lacrosse scandal suggests that a considerable portion of the Duke faculty and student body need to reread the Constitution and consider the accused -- regardless of their group identity -- innocent until proven guilty. Moreover, if, as Duke officials have claimed, Brodhead seriously desires to use this event as a "learning opportunity," he needs to explore why voices among the faculty urging local authorities to respect the due process rights of Duke's students seemed so overpowered by professors exhibiting a rush to judgment.
In early April, prior to his peculiar commentary on campus culture, Professor Neal joined 87 other Duke professors in signing a public statement about the scandal. Three academic departments and 13 of the university'ss academic programs also endorsed the statement, which was placed as an advertisement in the student newspaper, The Duke Chronicle, and is currently hosted on the Web site of Duke's African and African-American Studies program. That 88 faculty members -- much less entire departments -- would have signed on to such a document suggests that whatever plagues Duke's campus culture goes beyond the lacrosse team's conduct and the administration's insufficient oversight of its athletic department.
Few would deny that several players on Duke's lacrosse team have behaved repulsively. Two team captains hired exotic dancers, supplied alcohol to underage team members, and concluded a public argument with one of the dancers with racial epithets. In response, Brodhead appropriately cancelled the team's season and demanded the coach's resignation. Yet the faculty members' statement ignored Brodhead's actions, and instead contributed to the feeding frenzy in the weeks before the district attorney's decision to indict two players on the team.
The 88 signatories affirmed that they were "listening" to a select group of students troubled by sexism and racism at Duke. Yet 8 of the 11 quotes supplied from students to whom these professors had been talking, 8 contained no attribution -- of any sort, even to the extent of claiming to come from anonymous Duke students. Nonetheless, according to the faculty members, "The disaster didn't begin on March 13th and won't end with what the police say or the court decides." It's hard to imagine that college professors could openly dismiss how the ultimate legal judgment would shape this case's legacy. Such sentiments perhaps explain why no member of the Duke Law School faculty signed the letter.
More disturbingly, the group of 88 committed themselves to "turning up the volume." They told campus protesters, "Thank you for not waiting and for making yourselves heard." These demonstrators needed no encouragement: They were already vocal, and had already judged the lacrosse players were guilty. One student group produced a "wanted" poster containing photographs of 43 of the 46 white lacrosse players. At an event outside a house rented by several lacrosse team members, organized by a visiting instructor in English Department, protesters held signs reading, "It's Sunday morning, time to confess." They demanded that the university force the players to testify or dismiss them from school.
The public silence of most Duke professors allowed the group of 88 to become, in essence, the voice of the faculty. In a local climate that has featured an appointed district attorney whose behavior, at the very least, has been erratic, the Duke faculty might have forcefully advocated respecting the due process rights of all concerned. After all, fair play and procedural integrity are supposed to be cardinal principles of the academy. In no way would such a position have endorsed the players' claim to innocence: Due process exists because the Anglo-Saxon legal tradition has determined it elemental to achieving the truth. But such process-based arguments have remained in short supply from the Duke faculty. Instead, the group of 88 celebrated "turning up the volume" and proclaimed that legal findings would not deter their campaign for justice.
When faced with outside criticism -- about, for example, a professor who has plagiarized or engaged in some other form of professional misconduct, or in recent high-profile controversies like those involving Ward Churchill at the University of Colorado -- academics regularly condemn pressure for quick resolutions and celebrate their respect for addressing matters through time-tested procedures. Such an approach, as we have frequently heard since the 9/11 attacks, is essential to prevent a revival of McCarthyism on college campuses.
Yet for unapologetically urging expulsion on the basis of group membership and unproven allegations, few professors have more clearly demonstrated a McCarthyite spirit better than another signatory to of the faculty statement, Houston Baker, a professor of English and Afro-American Studies. Lamenting the "college and university blind-eying of male athletes, veritably given license to rape, maraud, deploy hate speech, and feel proud of themselves in the bargain," Baker issued a public letter denouncing the "abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us." To act against "violent, white, male, athletic privilege," he urged the "immediate dismissals" of "the team itself and its players."
Duke Provost Peter Lange correctly termed Baker's diatribe "a form of prejudice," the "act of prejudgment: to presume that one knows something 'must' have been done by or done to someone because of his or her race, religion or other characteristic." It's hard to escape the conclusion that, for Baker and many others who signed the faculty statement, the race, class, and gender of the men's lacrosse team produced a guilty-until-proven-innocent mentality.
Baker's attacks on athletics added a fourth component to the traditional race/class/gender trinity. It's an open secret that at many academically prestigious schools, some faculty factions desire diminishing or eliminating intercollegiate athletics, usually by claiming that athletes are lazy students, receive special treatment, or drive down the institution's intellectual quality. In fact, with the exception of the two revenue-producing sports (men's basketball and football), the reverse is more often true at colleges like Duke, Vanderbilt, Stanford, or the Ivy League institutions.
I admit to a bias on this score: My sister was a three-year starter at point guard for the Columbia University women's basketball team. Seeing how hard she worked to remain a dean's list student and fulfill her athletic responsibilities gave me a first-hand respect for the challenges facing varsity athletes at academically rigorous institutions. In addition to the responsibilities sustained by most students (challenging course loads, extracurricular activities, often campus jobs), athletes in non-revenue producing sports have physically demanding practice schedules, in-season road trips, and commitments to spend time with alumni or recruits. They play before small crowds, and envision no professional careers. It's distressing to see that many in the academy share Baker's prejudices, and view participation in college athletics as a negative.
With the most vocal elements among Duke's faculty using the lacrosse case to forward preconceived ideological and pedagogical agendas, it has been left to undergraduates to question some of the district attorney's unusual actions -- such as conducting a photo lineup that included only players on the team, sending police to a Duke dormitory in an attempt to interrogate the players outside the presence of their lawyers, and securing indictments before searching the players' dorm rooms, receiving results of a second DNA test, or investigating which players had documented alibis. In the words of a recent Newsweekarticle, the lawyer for one indicted player, Reade Seligmann, produced multiple sources of "evidence that would seem to indicate it was virtually impossible that Seligmann committed the crime." To date, the 88 faculty members who claimed to be "listening" to Duke students have given no indication of listening to those undergraduates concerned about the local authorities' unusual interpretation of the spirit of due process. Nor, apparently, do the faculty signatories seem to hear what The Duke Chronicleeditorial termed the "several thousand others of us" students who disagreed that "Duke breeds cultures of hate, racism, sexism and other forms of backward thinking."
The Raleigh News and Observer recently editorialized, "Duke faculty members, many of them from the '60s and '70s generations that pushed college administrators to ease their controlling ways, now are urging the university to require greater social as well as scholastic discipline from students. Duke professors, in fact, are offering to help draft new behavior codes for the school. With years of experience and academic success to their credit, faculty members ought to be listened to." If the group of 88's statement is any guide, this advice is dubious. Even so, Brodhead has named two signatories of the faculty group to the newly formed "campus culture" committee. Given their own record, it seems unlikely that their committee will explore why Duke's campus culture featured its most outspoken faculty faction rushing to judgment rather than seeking to uphold the due process rights of their own institution's students.
KC Johnson is a professor of history at Brooklyn College and the City University of New York Graduate Center.
The case was brought by Richard Ceballos, an assistant district attorney in Los Angeles, who wrote a memo recommending dismissal of a prosecution because the affidavit that police used to obtain a search warrant was inaccurate. Supervisors were openly unhappy with the memo and went forward with the prosecution in spite of it. Ceballos alleged that afterwards they penalized him by reassigning him to a different job and by denying him a promotion. While lower courts found that no retaliation had occurred, the Ninth Circuit Court of Appeals disagreed, further ruling that Ceballos’s unwelcome memo was protected under the First Amendment. The Supreme Court reversed the Ninth Circuit’s decision on the grounds that the memo was not protected speech, and remanded the case for reconsideration.
In the majority opinion, written by Justice Kennedy, the Court noted that the First Amendment would have protected Ceballos had he been penalized for articulating an unpopular view as a citizen, commenting on politics or other matters of public interest that any citizen might be concerned about, even if they were matters that fell within his particular expertise. Since he was expressing an opinion not as a concerned citizen but as part of his job as a government employee, and in a 5-to-4 decision, the justices concluded that on-the-job speech and writing of public employees are excluded from First Amendment protection.
In his dissent, Justice Souter expressed the fear -- voiced by a number of faculty groups once the Supreme Court agreed to hear the case -- that the ruling could dilute the academic freedom of instructors at public colleges. Addressing this concern, the Court’s opinion specifically sidesteps the issue of academic freedom, leaving it for another day, and another case: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."
This apparent exception is being viewed both as a victory and as a challenge for academic freedom -- a victory because it specifically separates academic expression from the broad doctrine of work-related speech being laid down; a challenge because it leaves academic freedom hanging by what may prove to be a slender thread.
After reading Ceballos, instructors at public institutions could easily conclude that academic speech retains the special protections they have come to expect under the principles of academic freedom articulated by the AAUP and subscribed to by most public and private colleges. But to a less optimistic observer the academic freedom exception is a typical Court hedge: we’re not asked to decide whether academic speech is protected today, so we won't. Furthermore, the carefully qualified, almost skeptical, wording -- "there is some argument" that academic discourse "implicates additional constitutional interests" -- would seem to invite a test case to resolve the matter.
We may not have to wait long for such a case. Conservative activists are urging states to adopt an "Academic Bill of Rights" aimed not at protecting academic speech but at ridding colleges of left-leaning faculty. The American Council of Alumni and Trustees has published a report critical of liberal faculty who replace traditional curricula with multiculturalism, Marxism, godlessness, and evolution. David Horowitz has published a list of the 100 most dangerous -- that is, liberal -- professors in the United States. And the Pennsylvania state legislature has set up a select committee to investigate the tyranny of the liberal elite who supposedly control that state’s public colleges.
With all this hoopla, so far there’s no evidence of a liberal plot to control academia and deny students an education, and so far there have been no prosecutions. But in such a climate -- one we haven’t seen since Senator McCarthy and HUAC took on the universities in the 1950s -- faculty can expect to be challenged, whether they are outspoken liberals or conservatives, or they go quietly about their teaching and research without making many waves; or they belong to the growing group of untenured, temporary, and part-time instructors afraid to say anything even with the protections of academic freedom, for fear they won’t be reappointed.
If a test case involving academic speech does arise, a Supreme Court already unwilling to extend First Amendment protection to public employees ranging from ADA’s to office clerks to medical personnel in state-run facilities could easily extend the doctrine espoused in Ceballos to the classroom.
But applying Ceballos to academic discourse produces unexpected results. The First Amendment prohibits Congress from making laws abridging the freedom of speech. Both public and private employees, when acting as ordinary citizens rather than employees, enjoy First Amendment protection when they express opinions. Protections on employee speech are different. Employers have always been able to control the on-the-job discourse of workers, and the courts have typically supported them in that effort.
The Supreme Court’s new conservative majority ruled against Ceballos -- Justice Alito cast the deciding vote -- because he is an employee. That he is a government employee simply does not matter. Were Ceballos expressing a political opinion, his speech would be protected, but memos written as part of his job were not.
Using the same reasoning, the Court could just as easily decide that the political speech of academics is protected when it is not part of their job, but that anything academics say or write when they’re at work -- not just memos or e-mails to students, but their scholarship and their teaching -- actually falls outside the umbrella of the First Amendment.
Adding Ceballos to the mix of what’s protected and was isn’t could let whimsy and prejudice play a significant role in regulating academic speech, just as it now plays a role in regulating what happens to a district attorney who suggests that the police are fabricating evidence in order to get a search warrant. A department head, a dean, a provost, a president, even a trustee who doesn’t like what a faculty member says for any reason, academic, religious or political, could discipline the faculty member for it in the same way that Ceballos’s supervisors didn’t like his criticism of the police, and disciplined him.
Worse still, if a parent, a state legislator, or a watchdog group exerts pressure on the institution because of a faculty member’s professional positions on multiculturalism or postcolonialism, on evolution or the big bang, as stated not in letters to the editor or at town meetings, but in published research or in the classroom, the institution could decide to remove the pressure by silencing the speech.
Of course all of this is conjecture. There is no test case. The Supreme Court has not imperiled academic speech. Even the "Academic Bill of Rights" insists that its goal is to defend academic freedom, though the AAUP, whose principles of academic freedom are liberally co-opted in that document, is skeptical of that claim. But academics and Court watchers would do well to anticipate the chilling impact that the Ceballos decision will have, both in the district attorney’s office and beyond, effects that could eventually affect those of us who work in public institutions of higher education.
Dennis Baron is professor of English at the University of Illinois at Urbana-Champaign.
College students are flocking to social networking sites on the Internet in stunning numbers, often unaware of the potential dangers that can arise there. These dangers primarily arise from posting personal information online that can be viewed by criminals, potential employers, and school administrators, which can result in identity theft, loss of job opportunities, and violations of school rules. Campus administrators should inform their students about the potential dangers of using social networking Web sites -- but they should be cautious not to do so in ways that could make them liable if the students engage in illegal behavior.
Students view social networking Web sites as private databases that permit them to communicate using a multimedia-based approach, but many don’t realize the potential dangers that accompany this type of activity. Because of this, colleges must provide their students with information regarding three major concerns in sharing information online: (1) the threat of criminal behavior; (2) how they might be seen by potential future employers; and (3) possible violations of their institution’s student code of conduct.
Although many students believe the personal information they share on social networking sites is not viewed by others, that information can provide criminals with enough detail to identify the student. In doing so, a student who posts personal details online can give criminals enough information to commit crimes such as stalking or identity theft. Because of the high risk of such crimes when personal information is posted on social networking Web sites, colleges should advise their students not to share private information online, such as names, addresses, email addresses, birthdates and phone numbers.
Information that students may think is personal could be viewed by potential employers if posted on social networking sites. As a result, colleges and universities should warn their students not to post inappropriate messages or photographs that could negatively influence an employer’s perception. Many employers are aware of social networking Web sites, and some use these sites to check for negative attributes of an applicant.
A recent New York Times article highlighted this concern: “[N]ow, college career counselors and other experts say, some recruiters are looking up applicants on social networking sites ... where college students often post risqué or teasing photographs and provocative comments about drinking, recreational drug use and sexual exploits in what some mistakenly believe is relative privacy.” Because the information posted by students on social networking Web sites is often publicly viewed, colleges should remind their students that the information they post on these sites is not private, and that potential employers could use that information to form crucial first impressions about student applicants.
Much of the information that would create concern among potential employers if viewed on a social networking Web site could also violate a school’s code of student conduct. These student rules and restrictions are often found in a student handbook or similar school publication. The Syracuse Post-Standarddescribed this issue as “a growing trend where officials nationally are paying attention to what their students are posting on the Internet.”
Students have been found guilty of violating these student regulations at numerous schools. At Pennsylvania State University, students created a Facebook group entitled “I rushed the field,” to which students joined and posted photographs and names of people on the field after the school’s win over Ohio State in football. After accessing the Facebook group’s Web page, university police used that information to identify more than 50 students who violated the school’s policy by rushing the field after the football game.
In addition, a growing number of universities are creating policies to regulate their athletes’ use of social networking Web sites. Athletes present a unique public image for the university, and schools could be embarrassed if athletes post information online about participating in illegal activities.
In May 2005, students on Louisiana State University’s swim team were reprimanded after athletic administrators discovered the students belonged to a Facebook group that included disparaging comments about swim coaches. One student transferred to Purdue University to avoid being reprimanded and expressed surprise that administrators had found the postings online. Athletic administrators at Florida State University and the University of Kentucky recently warned their athletes to be careful what they post.
Challenges for Colleges, Too
Just as social networking sites pose a set of potential risks for students, they create a set of questions and potential problems for institutions as well.
Although most colleges do not currently monitor their students’ online activities, university police often investigate tips received about information posted on the Internet. As a result, university police and school administrators may learn about information posted on social networking Web sites that violates the school’s code of student conduct.
Three primary questions arise in the context of monitoring these activities. First, is the college monitoring its students’ online activities regularly? A college that doesn’t monitor its students’ online activities should analyze whether monitoring is necessary.
Second, if the institution monitors this activity, why has it chosen to do so? If a college monitors its students’ online activities to assure that students act in accordance with its mission, such as a military or religious institution, then it may create a “duty of care” toward its students. A duty of care would obligate a college to take all reasonably practicable steps to prevent its students from harm. If a college with a duty of care toward its students does not take all reasonably practicable steps to prevent harm to its students, the college’s actions may be negligent and could expose the college to lawsuits. But colleges that do not regularly monitor their students’ online activities and only investigate tips of potential crimes online may be free to continue periodic monitoring without assuming a duty of care.
Third, has the college informed its students of its policy toward monitoring? A school that informs all incoming students of its policy of monitoring students’ online activities during orientation or posts this information prominently on campus may be more likely to assume a duty of care toward its students. If most students are not informed of a school’s policy of monitoring such activities, however, the school may be less likely to have assumed a duty of care toward its students, because there is likely a lower expectation that the school would monitor these activities.
In addition, the specificity and clarity of a school’s statements informing students of the school’s monitoring policy should be considered. If the school’s policy statement is ambiguous or its scope is unclear, students may be less likely to rely upon schools to prevent illegal acts resulting from online activity. Statements that clearly state the school’s policy of monitoring, including its scope and application to specific online activities, such as social networking Web sites, are more likely to create a duty of care for the school.
Colleges and universities must inform students about the particular dangers they face online. But if schools actively monitor their students’ online activities and students are aware of this policy, they may have a duty of care that includes preventing any illegal acts committed as a result of information posted online.
Thus, schools should inform their students about the potential dangers of using social networking Web sites, but should also be careful not to become liable if the students engage in illegal behavior.
Sheldon Steinbach and Lynn Deavers
Sheldon E. Steinbach and Lynn M. Deavers are lawyers in the higher education practice at the Washington law firm Dow Lohnes
There was a national sigh of relief on campuses in June when an altered U.S. Supreme Court left standing the historic 2003 Grutter v. Bollinger decision supporting affirmation action in admissions. There had been widespread fear among civil rights advocates that a more conservative Supreme Court would seriously undermine or even reverse the 5-4 Grutter decision with its author, Justice Sandra Day O’Connor, no longer on the Court. The voluntary school integration decision in Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County Board of Education was, indeed, a serious reversal for desegregation in K-12 schools but while divided on the constitutionality of the school plans at issue in the cases, all nine justices agreed that the decision had no impact on the Grutter precedent. The rights of colleges to use race in admissions decisions for student body diversity had survived scrutiny by the most conservative Supreme Court in more than 70 years. Since the Supreme Court rarely takes such cases, the Grutter precedent might last for a while. While a bullet was dodged, optimism should be restrained. The dike protecting affirmative action has held but the river that brings diverse groups of students to colleges may be drying up as a result of the latest decision.
Colleges and universities, especially selective institutions, tend to draw their successful minority applicants from interracial schools and their admissions offices know well that many of the segregated minority high schools fail to prepare their students well enough to succeed in college. Research by the Civil Rights Project has shown that too many segregated urban high schools are "dropout factories" where the main product is dropouts and successful preparation for college is rare. Conservative economist Eric Hanushek found that the damage was worst for the relatively high achieving black students, the very students likely to comprise the college eligible pool. So making segregation worse cuts the number of well prepared students. In addition to academic preparation, students from segregated backgrounds are also often not ready to function socially on a largely white, affluent campus. It also means of course, that the most segregated group of students in American schools, whites, also have less preparation to deal successfully with diversity. So colleges may have won, but also lost.
Even before the new decision, segregation had been on the rise for almost two decades in American public schools, partially as a result of three decisions by the Supreme Court limiting desegregation in the 1990s ( Board of Education of Oklahoma City v. Dowell, Freeman v. Pitts and Missouri v. Jenkins). Because this new decision struck down the most common methods of creating integrated schools in districts without court orders to desegregate, it will likely precipitate further increases in segregation. Since 1980 the tools most commonly used to create integrated schools combine parental choice of schools with magnet programs and racial diversity guidelines. Now the limitations that prevented transfers and magnet choices that increased segregation are gone and districts have to decide whether to do something more complex and multidimensional or abandon their integration efforts. It remains to be seen what will happen in various districts, of course, but the experience of other districts that have ended the consideration of race as a criteria in their student assignment policies suggests that race-neutral methods will lead to resegregation and growing inequality.
Research thus suggests that there are two significant implications for higher education to consider. First, rising segregation is likely to bring a rise in educational inequality and less prepared black and Latino students. Second, all incoming students are likely to have fewer interracial experiences prior to attending college meaning they will be less prepared for effective functioning in an interracial setting.
The Seattle and Louisville cases produced an outpouring of summaries of a half century of research by a number of groups of scholars. A subsequent review of the briefs by the non-partisan National Academy of Education confirms the central premise of Brown v. Board of Education that racially isolated minority schools offer students an inferior education, which is likely to harm their future life opportunities, such as graduation from high school and success in college. Racially isolated minority schools are often unequal to schools with higher percentages of white students in terms of tangible resources, such as qualified, experienced teachers and college preparatory curriculum, and intangible resources including low teacher turnover and more middle-class peers -- all of which are associated with positive higher educational outcomes.
Although colleges and universities differ in their criteria and process for admissions, common elements to their admissions decisions for students include 1) whether a student has or will graduate from high school, 2) standardized test scores, and 3) number of advanced and Advanced Placement courses. Research consistently finds that minority students graduate at significantly lower rates in racially isolated minority schools; in fact, minority isolation is a significant predictor of low graduation rates, even when holding constant the effects of other school performance indicators. Academic achievement scores of students are also lower in segregated minority schools, and this effect can cumulate over time for students who spend multiple years attending segregated schools. Finally, many predominantly minority schools do not offer as extensive advanced curricular opportunities and levels of academic competition as do majority white or white and Asian schools.
In addition to offering different opportunities for academic preparation, research has also found that integrated schools offer minority students important connections to competitive higher education and information about these options. There are strong ties between successful high schools and selective colleges. Minority students who graduate from integrated schools are more likely to have access to the social and professional networks normally available to middle class white students. For example, a study of Latino students who excelled at elite higher educational institutions found that most students had attended desegregated schools -- and gained academic confidence as well as critical knowledge about what they need to do to accomplish their aspirations (e.g., which courses to take from other, college-going students).
White students also lose if schools resegregate. Desegregation advocates assert that public school desegregation is powerful and essential because desegregated schools better prepare future citizens for a multiracial society. A critical component of this preparation is gaining the skills to work with people of diverse backgrounds. Segregated schools in segregated neighborhoods leave white as well and nonwhite students ill-prepared for what they will encounter in colleges and university classes or in their dorms.
Over 50 years ago, Harvard psychologist Gordon Allport suggested that one of the essential conditions to reducing prejudice was that people needed to be in contact with one another, particularly under appropriate conditions. Research in racially integrated schools confirms that, by allowing for students of different races and ethnicities to be in contact with one another, students can develop improved cross-racial understanding and experience a reduction of racial prejudice and bias. Importantly, research suggests that other interventions such as studying about other groups are not as effective or as long-lasting as actually being in contact with students of other racial/ethnic backgrounds.
Research on graduates of racially integrated elementary and secondary schools has also found that students who graduated from these settings felt their integrated schooling experiences had better prepared them for college, including being more interested in attending integrated higher education institutions. The Civil Rights Project has surveyed high school juniors in a number of major school systems around the country and students in more diverse schools report feeling more comfortable living and working with others of different backgrounds than did their peers in segregated high schools.
As schools become more segregated, it will become more incumbent on colleges and universities to intensify their outreach and retention programs to improve access for all students, and to consider the extra burdens borne by the victims of segregation who have done nothing to deserve unequal opportunities. In particular, it will be critically important for colleges and universities to continue to use race in their outreach and retention programs. As colleges and universities that have sought to defend affirmative action policies have long understood and Justice Anthony M. Kennedy recently wrote, “The enduring hope is that race should not matter, the reality is that too often it does.” Further, the need to help students understand how to productively live with others from diverse backgrounds will fall to higher education. As other institutions retreat from mirroring the racial diversity of our country, this may increasingly become a responsibility universities must shoulder.
Our incoming students already have more limited interracial experiences than the last generation of students, a trend that is likely to only get worse. We hope that many school districts will continue to value integration and seek more comprehensive policies under the new guidelines set forth in Justice Kennedy's controlling opinion, but it is very likely that segregation will worsen. We believe that university faculty and researchers who may have expertise to assist local school districts find legal and workable solutions to maintain diversity should offer support at this critical time. Universities can also take a public leadership and education role in continuing to argue for the importance of integrated educational settings. These actions could help limit some of the ill effects of the resegregation of local schools and help keep alive the legacy of Brown in a period of judicial retreat.
Gary Orfield, Erica Frankenberg and Liliana M. Garces
Gary Orfield is a professor at the University of California at Los Angeles and co-director of the Civil Rights Project/Proyecto Derechos Civiles. Erica Frankenberg and Liliana M. Garces are doctoral candidates at the Harvard University Graduate School of Education and research assistants at the Civil Rights Project. Orfield and Frankenberg are co-editors of a recently published book, Lessons in Integration: Realizing the Promise of the Racial Diversity in American Schools (University of Virginia Press). Garces, formerly a civil rights lawyer, served as counsel of record in the 553 Social Scientists brief submitted in support of the desegregation plans in the Seattle and Louisville cases.
Recent campus incidents have highlighted the importance of effective communication among administrators, faculty, and staff, as well as between campus representatives and students, families, and surrounding communities. Some commentators have argued that these incidents prove the need to amend the Family Educational Rights and Privacy Act, the federal statute known as FERPA that protects student privacy, in order to permit greater disclosure of information about troubled students. Actually, the current law works well, but colleges and universities need to better understand what that law really provides -- and each institution needs to develop an internal consensus on how to approach the policy choices FERPA allows it to make.
Colleges have worked hard to educate their employees on the importance of protecting student privacy. This effort has been motivated in large part by the need to comply with FERPA. For example, following the terrorist attacks of 9/11, many campuses had to remind their personnel to protect the privacy of students against illegal disclosures of information motivated not by rational concern but by prejudice and bias many outside academe had against certain international students.
Legitimate interests in student development have also motivated concerns for privacy. Under ordinary circumstances, according college students a measure of privacy -- even (or perhaps especially) from their own parents -- can without question help their development into independent, autonomous adults. FERPA itself actually reflects this period of transition by shifting primary legal control of the student’s records from parents to the student once the student attends a college or university.
In some circumstances, FERPA has been invoked as the reason not to share student information, when in reality the law would permit disclosure but the interests of student development and autonomy weigh against it. For example, FERPA permits but does not require colleges and universities to notify a student’s parents of certain drug and alcohol violations of the institution’s disciplinary code. Many institutions do not notify parents of every incident involving a minor illegally in possession of alcohol, choosing instead to begin with an educational intervention to assist the student in making better choices, and only notify parents in cases of repeated, serious, or dangerous violations.
The decision not to disclose less serious violations is a policy decision, and should be understood and described as such. It should not be held out as a decision required by FERPA. Unintended and potentially dangerous consequences can arise if legitimate policy goals are confused with legal mandates because institutions may then forget that FERPA grants them discretion. It is especially important to remember that FERPA expressly permits appropriate disclosures in times of actual or potential emergency, as well as in various less drastic circumstances in which an individual seeks to communicate sincere concerns for a student’s well-being or the public welfare.
Although FERPA restricts disclosures of information obtained from a student’s records, it was never intended to act as a complete prohibition on all communications. One threshold point that is often overlooked is that FERPA limits only the disclosure of records and information from records about a student. It does not limit disclosure or discussion of personal observations.
In other words, if a college or university employee develops a concern about a student based on the employee’s observations of or personal interactions with the student, the employee may disclose that concern to anyone without violating, or even implicating, FERPA. (Of course, there may be other reasons an institution would not want to, or could not, disclose that concern, and, in most cases, the initial disclosure should be made to professionals trained to evaluate and handle such concerns, such as campus mental health or law enforcement personnel, who can then determine whether further and broader disclosures are appropriate).
Even when information is part of a student’s records and therefore covered by FERPA, the law provides several exceptions that permit appropriate communications under circumstances in which the student or others may be at risk of harm. For example, FERPA expressly permits the disclosure of information from a student’s records “…to appropriate parties in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.”
This exception doesn’t permit indiscriminate disclosures of personal information, but it does set a fairly low threshold of good faith for determining when disclosures are needed to protect health or safety, what disclosures are appropriate, and to whom they may be made. FERPA also permits disclosures, among others, of any information about a student to other college officials with legitimate interests in the information or to the parents of that student if he or she is their dependent for tax purposes; of information regarding the results of certain student conduct proceedings involving violence to the general public; and of any relevant information to other schools where a student seeks or intends to enroll.
The National Association of College and University Attorneys (NACUA) has just published a “FERPA and Campus Safety” Q & A to provide accurate information about FERPA to campus administrators and others. This document answers frequently asked questions about FERPA and suggests important elements to consider in setting institutional policies. And while advocating compliance with FERPA, it also puts into perspective the critical importance of campus and public safety in today's world.
This is not to suggest that colleges and universities that have dealt with complicated situations and made difficult decisions have done so in anything less than good faith. Nor, certainly, is it to say that concerns for student development and autonomy have no place in the analysis when determining what, when, and to whom to disclose. But institutions should recognize these concerns for what they are -- self-imposed policy constraints, not legal mandates -- and balance them accordingly, and responsibly, against other equally relevant policy considerations such as safety. If we don't, others may well make the choice for us, quite likely without full consideration of the factors that are important to us and in ways that we won't like. It is thus critical that colleges and universities evaluate in advance both their understanding of FERPA and how they will exercise their discretion under it in response to campus incidents.
Nancy E. Tribbensee and Steven J. McDonald
Nancy E. Tribbensee is general counsel for the Arizona University System. Steven J. McDonald is general counsel at the Rhode Island School of Design.
This month in an important victory for free speech on campus, the U.S. Court of Appeals for the Third Circuit held that Temple University’s former sexual harassment policy was unconstitutional. While free speech advocates from across the ideological spectrum cheered the Third Circuit’s ruling in DeJohn v. Temple University, some critics expressed dismay at what they deemed a “very ominous” example of “activist judging.” These critics are wrong -- and it’s important for both students and university administrators to understand why.
In February of 2006, Christian DeJohn filed a complaint in federal district court alleging that Temple had violated his First Amendment rights by punishing him for political expression. Among other serious allegations, DeJohn’s complaint charged that Temple’s sexual harassment policy (which, for example, prohibited “generalized sexist remarks”) violated his First Amendment right to free expression. DeJohn asserted that he felt inhibited from discussing his views on the role of women in the military, among other issues, and worried that he could be punished under Temple’s policy for expressing his opinions.
Seeking to obviate DeJohn’s First Amendment challenges, Temple revised its sexual harassment policy in 2007 by scrapping the sections of its policy at issue before the district court. Having done so, Temple asked the court to dismiss the portion of DeJohn’s complaint that related to the sexual harassment policy. However, the district court denied Temple’s motion, arguing that nothing prevented Temple from reinstituting the original policy following the conclusion of DeJohn’s suit. In March 2007, the district court found Temple’s now-abandoned sexual harassment policy to be unconstitutional on its face and issued an injunction against its enforcement.
Temple appealed the district court’s ruling to the Third Circuit in April 2007. This month, the Third Circuit ruled in favor of DeJohn, concluding that Temple’s former sexual harassment policy was unconstitutionally overbroad and affirming the lower court’s holding. Explaining that “[d]iscussion by adult students in a college classroom should not be restricted,” the court found that Temple’s former policy prohibited constitutionally protected speech and was therefore unacceptably overbroad.
Some critics of the opinion argue that the court should have found DeJohn’s claims moot since the university voluntarily revised the policy before the appeal was heard. But in the opinion, the Third Circuit rejected the mootness argument. Following U.S. Supreme Court precedent, the court held that a finding of mootness is only appropriate if “it can be said with assurance that there is no reasonable expectation that the alleged violation will recur.” Because Temple, in its appellate brief, defended both the constitutionality of its former policy and its particular necessity on Temple's campus, the court held that it could not be certain that Temple would not simply reinstate the policy once the litigation was over.
Indeed, Temple’s brief on appeal argued vehemently for the constitutionality of its former policy. Temple’s aggressive defense of its policy was fueled by outside events: between the time the District Court found the policy unconstitutional and the Third Circuit was to hear the appeal, the U.S. Supreme Court issued a significant decision that Temple hoped would change the outcome of its case.
In Morse v. Frederick, decided in June 2007, the Supreme Court held that a public high school did not violate the First Amendment in suspending a student for unfurling a banner that read “BONG HiTS 4 JESUS” at a school-sponsored event. In their appellate brief, Temple seized on Morse and sought to expand its holding. Temple contended that Morse granted public colleges broad authority to restrict the speech of adult college students in the same way that high schools could regulate the speech of their students (who are generally under 18) -- an expansion particularly threatening to free speech and academic freedom on college campuses. As a result, Temple argued, its sexual harassment policy was acceptable in the post-Morse environment.
Given Temple’s argument that its sexual harassment policy was constitutionally permissible in light of new legal precedent, it is not surprising -- and hardly a mark of activism -- that the Third Circuit felt compelled to issue a decision on the case. But in reaching its decision on mootness, the Third Circuit did not fashion new legal principles out of whole cloth. Rather, the court followed the explicit guidance of its own precedent -- which, as the opinion notes, “articulate[s] the burden for the party alleging mootness as “‘heavy,’ even ‘formidable.’” Indeed, every aspect of the Third Circuit’s decision relies heavily on appropriate precedent, whether from its own appellate decisions or those of the Supreme Court. If anything, Temple’s brief argued for the more “activist” outcome by claiming that the Supreme Court’s narrow holding concerning high school students in Morse could be used to justify maintaining an overbroad speech code in the collegiate setting. Had the Third Circuit applied a high school case like Morse to colleges and universities, the resulting opinion would have represented a sea change in our legal thinking about college students’ rights, opening the door to the wholesale evisceration of free expression on campus.
Not only is the Third Circuit’s ruling in DeJohn not “activist,” it is not political, as some have charged. DeJohn is squarely in line with 50 years of Supreme Court decisions placing special emphasis on the importance of free speech in higher education, as well as two decades of district court decisions uniformly ruling that at public colleges, speech codes (often masquerading as anti-harassment policies)are unconstitutional. In this case, opposition to Temple’s speech code brought together groups as ideologically varied as the ACLU of Pennsylvania, the Christian Legal Society, Feminists for Free Expression, the Student Press Law Center, Students for Academic Freedom, Collegefreedom.org, and the Alliance Defense Fund. If anything, opposition to speech codes has transcended partisan divides, as judges and advocacy organizations from all over the country and the political spectrum agree that such codes are incompatible with fundamental First Amendment freedoms and the unique role of the university in American life.
DeJohn’s critics also argue that the Third Circuit erred by considering DeJohn’s claims against Temple without what they consider to be ample evidence that DeJohn had been specifically harmed by Temple’s sexual harassment policy. Robert M. O’Neil, executive director of the Thomas Jefferson Center for the Protection of Free Expression, told Inside Higher Ed that he found the Third Circuit’s opinion to be “very ominous” because he believed the court did not sufficiently consider whether DeJohn was actually affected by the policy. O’Neil said the court offered “no proof that this plaintiff was in any way put at risk or threatened or even reasonably felt threatened by the existence of the policy.”
Facial challenges for overbreadth are a unique, well-established and crucial aspect of First Amendment law. Recognizing that First Amendment rights are “supremely precious in our society,” the Supreme Court developed the overbreadth doctrine to protect speech from the chilling effect that occurs when a law or regulation is written so broadly that it reaches substantial amounts of protected speech. Plaintiffs may challenge allegedly overbroad statutes “as written,” rather than “as applied,” on behalf of those not in front of the court. The idea is that anyone subject to a law or policy that restricts his or her right to freedom of speech may challenge it on behalf of all citizens negatively affected by the constitutional violation.
Contrary to O’Neil’s characterization that there existed “no proof” that DeJohn “reasonably felt threatened” by Temple’s policy, the Third Circuit determined that, as a Temple student, DeJohn suffered from the policy’s existence. As the court noted, DeJohn argued that the policy made him feel “inhibited in expressing his opinions in class concerning women in combat and women in the military.” In other words, the policy had an impermissible “chilling effect” on his right to free expression. DeJohn was “concerned that discussing his social, cultural, political, and/or religious views regarding these issues might be sanctionable by the university” -- and by concluding that Temple’s policy “provide[d] no shelter for core protected speech,” the Third Circuit accepted these concerns as legitimate and reasonable. Because the Supreme Court has held that even a fleeting loss of First Amendment freedoms “unquestionably constitutes irreparable injury,” the Third Circuit was absolutely correct in determining that DeJohn had suffered sufficiently to entertain his facial challenge.
The DeJohn opinion should come as no surprise to public universities. District courts have been striking down overbroad harassment policies for nearly 20 years. Rather than reaching unexpectedly “ominous” or “activist” legal conclusions, DeJohn simply provided a reaffirmation of clearly established law.
The Third Circuit adhered strictly to the standard for student-on-student harassment announced by the Supreme Court in Davis v. Monroe County Board of Education, a 1999 opinion holding that actionable harassment is limited to that behavior so “severe, pervasive, and objectively offensive ... that the victims are effectively denied equal access to an institution’s resources and opportunities.” The Third Circuit made clear in DeJohn that Davis’s standard must be carefully followed, writing that “[a]bsent any requirement akin to a showing of severity or pervasiveness -- that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work,” harassment policies like Temple’s provide “no shelter for core protected speech.”
If anything, the most noteworthy aspect of the Third Circuit’s ruling was the court’s refusal to import Morse’s restrictions on student speech into the university setting. That is a victory, because treating the First Amendment rights of university students as functionally equivalent to those of high school students fundamentally confuses the unique pedagogical missions of each level of schooling. The Third Circuit’s clear pronouncement that the First Amendment rights of adult college students must not be abridged should be welcomed by public universities, not feared.
William Creeley, Samantha Harris and Greg Lukianoff
Will Creeley is a lawyer and the director of Legal and Public Advocacy for the Foundation for Individual Rights in Education. Samantha Harris is a lawyer and the director of Spotlight: The Campus Freedom Resource for FIRE. Greg Lukianoff is a lawyer and president of FIRE.