Gale Encyclopedia Of American Law 3Rd Edition Volume 2 P55 pptx

found that a proposed blacks-only law school in Texas would be unequal to the prestigious and then-all-white University of Texas Law School not only in the quality of its tangible facilities but also in the quality of such intangibles as reputation and education. Despite these early victories, de jure racial segregation of public colleges and universities did not become illegal until the court decided BROWN V. BOARD OF EDUCATION OF TOPEKA, KANSAS, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954). Following Brown, schools throughout the United States were required to adopt desegregation policies, but DE FACTO (i.e., actual) segregation remained in many university systems. Litigation in the federal courts continued more than 50 years after Brown. In 1992 the U.S. Supreme Court held that the state of Mississippi had failed to satisfy its duty to desegregate the state university system, in United States v. Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120 L. Ed. 2d 575 (1992). In Fordice, th e st ate had eliminated its requirement that blacks and whites be educated separately, but allowed previously white schools to remain distinct from previously black schools and inaccessible to black students. By the mid-1980s previously all-white schools in Mississippi remained more than 80 percent white and previously all-black schools remained more than 90 percent black. The court found that the state’s policy of requiring higher American College Test (ACT) scores for admis- sion to white schools than to black schools perpetuated the state’s formerly de jure dual system because it effectively foreclosed many black students from attending white schools and forced them to attend black schools, which received less funding. The court ruled that merely abolishing legal segregation and imple- menting race-neutral policies (i.e., policies that purport to treat individuals equally without regard to race) did not satisfy the state’s duty to desegregate. Instead, the court held, if schools or school policies maintain racially identifiable characteristics that can be traced to STATE ACTION , the state may be deemed to perpetuate former discriminatory practices in violation of the Equal Protection Clause. In the wake of Fordice, federal courts re- examined segregated systems of higher educa- tion in several states (Knight v. Alabama, 14 F.3d 1534 [11th Cir. 1994]; United States v. Louisiana, 9 F.3d 1159 [5th Cir. 1993]). The litigation that resulted in the Fordice decision continued for more than a decade until the claims were finally settled Ayers v. Thompson, 358 F.3d 356 (5th Cir. 2004). Federal Law and Private Institutions In 1964, in response to the slow pace of racial reform, Congress passed the Civil Rights Act of 1964, which prohibited discrimination on the basis of race (and sometimes gender) in public accom- modations, federally funded programs, and employment. Title VI of the act prohibits discrimination “on the basis of race, color, or national origin,” in “any program or activity receiving Federal financial assistance,” which includes many centers of higher learning in the United States. Title VI reaches state and private schools that receive direct federal funding. It also reaches some institutions that receive no direct federal aid but that have a significant proportion of students who do (Grove City College v. Bell, 465 U.S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 [1984]). Affirmative Action Beginning in the late 1960s, in response to the CIVIL RIGHTS MOVEMENT,many universities began adopting AFFIRMATIVE ACTION College Enrollment of Recent High School Graduates, 1970 to 2006 0 10203040506070 Percent enrolled in college a a Persons aged 16 to 24 who graduated from high school in the preceding 12 months. Includes persons receiving GEDs. SOURCE: National Center for Education Statistics, Digest of Education Statistics, 2007. White Black Hispani c 2000 1990 1980 1970 Year N/A N/A 63.99 56.19 53.00 2006 68.5 55.5 57.9 61.53 46.33 47.32 49.93 41.83 52.71 52.01 ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 528 COLLEGES AND UNIVERSITIES policies. Such policies attempt to encourage or to promote racial equality by ending de jure inequalities that remain even though legal inequalities have been abolished. In the begin- ning, many institutions employed quotas that reserved a certain number of spots for applicants of racial minorities. Other institu- tions considered membership in a racial minority as one var iable in determining whether to admit a stude nt. It was not long before affirmative action policies came under legal attack as “reverse discrimination.” The first serious challenge to affirmative action, REGENTS OF THE UNIVERSITY OF CALIFORNIA V . BAKKE, 438 U.S. 265, 98 S. Ct. 2733, 57 L. Ed. 2d 750 (1978), fundamentally changed its structure. In Bakke, Allan Bakke, a civil engineer of Norwegian descent, applied for admission to a medical program at the Univer- sity of California. The program in question set aside 16 spaces for minority students out of a class of 100. Candidates for the set-aside spaces did not have to meet the minimum grade-point- average threshold established for other candi- dates. Although Bakke’s grade-point average fell slightly below the minimum, he argued that he would have been admitted on an evaluative basis if the set-aside spots had not existed. He sued the university under Title VI and the Equal Protection Clause, arguing that the affirmative action program discriminated against him on the basis of his race. The U.S. Supreme Court found that the university’s affirmative action program violated Title VI because it used strict racial quotas to determine admission. The court found that the program also violated the Equal Protection Clause because it was not narrowly tailored to meet a compelling government interest. The court observed that the program was designed to remedy the effects of general societal discrimination (a legitimate, but not compelling, government interest), not its own specific discriminatory practices, which might constitute a compelling interest. None- theless, the court held that the use of race as one criterion in determining admission does not violate either Title VI or the Fourteenth Amendment. In doing so, it did not prohibit all consideration of race in admission decisions, noting with approval certain programs that take race into account to promote educational diversity. Following Bakke, programs that set aside a fixed number of spaces for minority students no longer constituted an acceptable means of affirmative action. Most universities that main- tained affirmative action programs adopted the type of program approved in Bakke, which permits the consideration of race in admission or scholarship decisions in order to encourage diversity. Some schools introduced scholarships that were designed to benefit only certain groups, suc h as students belonging to a particular race. Beginning in the mid-1980s, as the U.S. Supreme Court began holding that affirmative action programs designed to remedy the effects of past disc rimination would need to satisfy the same strict standards as other race- based classifications (City of Richmond v. J. A. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 [1989]), race-restricted scholar- ships became the focus of lawsuits. Lower federal courts struggled with Bakke for years. In Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), the U.S. Court of Appeals for the Fourth Circuit considered a challenge to the University of Maryland’s Banneker Scholar- ship program, a merit-based scholarship for which only black students were eligible. Daniel J. Podberesky, a Hispanic student, qualified for the Banneker Scholarship in all respects but race. He sued the university, alleging that the scholarship program discriminated on the basis of race. The university countered that the program was designed to remedy the institu- tion’s own past discrimination, which had led to the underrepresentation of blac k students at the university. The court held that the Banneker program violated the Fourteenth Amendment because it was not narrowly tailored to remedy the effects of the university’s Shannon Faulkner sued for and won admission to The Citadel, a previously men-only public college. She is shown here (center) with other new cadets during orientation on August 12, 1995. MITCHELL SMITH/ CORBIS SYGMA. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION COLLEGES AND UNIVERSITIES 529 past discrimination. Similarly, the Fifth CIRCUIT COURT of Appeals in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) determined that the affir- mative actio n program at t he University of Texas violated the Equal Protection Clause because the institution could not prove that the policy was necessary to further a compelling governmental interest. The Supreme Court finally agreed to review its decision in Bakke by granting CERTIORARI in two decisions involving the University of Michigan. In one case, Gratz v. Bollinger, 539 U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257 (2003), the court reviewed the university’s policy of giving undergraduate admission preferences to racial minorities. The real effect of this program was that virtually all qualified minority applicants were admitted, but not all qualified white candidates were admitted. The court concluded that the program was unconstitu- tional because it was not narrowly tailored to further the government’s interest in having a diverse student body. In the second case, Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003), the court reviewed the University of Michigan’s law school admissions policy. Unlike the undergraduate policy, the law school con- sidered race a “plus” factor among a number of other factors. The court concluded that using race as a plus factor was a means of narrowly tailoring the school’s desire to have a diverse student body. The result of the Grutter decision was that many colleges and universities altered their admissions policies to consider race as one of the factors for admissions. Gender Discrimination Segregated Public Institutions The Equal Protection Clause does not require states to satisfy the same strict standards for gender discrimination as for racial discrimination. Whereas states are held to a “strict scrutiny” requirement with regard to racial discrimina- tion, they need only demonstrate that discrimi- nation on the basis of gender substantially furthers an important government purpose. The men-only policies maintained by the Virginia Military Institute (VMI) and the Citadel of South Carolina, have been challenged thro- ughout the years by women seeking admission. In the early 1990s, the U.S. Court of Appeals for the Fourth Circuit considered two unrelated cases that challenged the legality of men-only public colleges: Faulkner v. Jones, 51 F.3d 440 (1995), cert. denied, 516 U.S. 910, 116 S. Ct. 331, 133 L. Ed. 2d 202 (1995), and UNITED STATES V. VIRGINIA,44F.3d1229(1994),cert. granted, 516 U.S. 910, 116 S. Ct. 281, 133 L. Ed. 2d 201 (1995) (hereinafter VMI). The same court reached two different results in VMI and Faulkner, because Faulkner involved an individual PLAINTIFF who had sought admis- sion to the Citadel, whereas VMI was brought by the DEPARTMENT OF JUSTICE and did not involve a particular student. In Faulkner, the Court required the Citadel to admit the plaintiff, Shannon Faulkner, because Faulkner was a “real live plaintiff.” The court explained that, although admission to the school was the only appropriate remedy in a case involving a live plaintiff, the state might later develop a parallel program, as recommended in VMI, or adopt a coeducational policy. In VMI, the court held that because “homogeneity of gender” was integral to the type of leadership education provided at VMI, maintaining a men-only college substantially furthered the legitimate public purpose of providing unique leadership education. It then held that the establishment of a separate-but- parallel, state-sponsored women’s college with substantially the same goals as VMI’s would satisfy the requirements of the Equal Protection Clause. Faulkner withdrew shortly after the school year began, putting an end to any possible appeals in her case. However, the court did hear the government’s appeal from the VMI decision and held that Virginia’s categorical exclusion of women from VMI denied equal protection to women (United States v. Virginia, 116 S . C t. 2264). The court agreed that gender-based classifications are not completely forbidden by the Equal Protection Clause, but it stated that Virginia had failed to provide “exceedingly persuasive justifi- cation” for excluding women from VMI. In addition, the court held that the separate-but- parallel women’s college that Virginia had proposed violated the Equal Protection Clause, terming the women’s college a “pale shadow of VMI” in terms of its educational and leadership opportunities. Title IX Eight years after Congress enacted Title VI of the Civil Rights Act of 1964, it GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 530 COLLEGES AND UNIVERSITIES amended the act to extend protection against discrimination in federally funded programs to include gender. Title IX of the Education Amendments of 1972 parallels Title VI and has been used to attack gender discrimination in such diverse areas as admissions, scholarships, discipline, and SEXUAL HARASSMENT. For example, in Sharif v. New York State Education Depart- ment, 709 F. Supp. 345 (S.D.N.Y. 1989), a federal district court held that the state of New York could not use Scholastic Aptitude Test (SAT) scores as its sole criterion for awarding college scholarships without violating Title IX. Because girls score an average of 60 points lower on the test than boys, and because the SAT was not, and did not purport to be, a measure of past performance in school, the court ruled that its use had a discriminatory effect on the awarding of scholarships without bearing any relationship to a reward for successful perfor- mance in high school. In Yusuf v. Vassar Colleg e, 35 F.3d 709 (1994), the U.S. Court of Appeals for the Second Circuit held that a private college may have discriminated against a male student who allegedly sexually harassed a female student, by systematically applying different and stricter standards to sexual haras sment proceedings than to other disciplinary proceedings. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992), t he U.S. Supreme Court held that Title IX also prohibits sexual harassment in edu- cational institutions and that teachers who sexually harass or abuse students discriminate on the basis of sex in violation of Title IX. Title IX ’s most visible effect has been in college athletics. Most colleges and universities operate men’s and women’s athletic programs, some of which participate in intercollegiate competitions administered by the National Collegiate Athletic Association (NCAA). Title IX caused a great deal of concern when first enacted, as many schools were worried they could not remedy une qual participation by men and women in various athletic programs without going to considerable expense or cutting successful programs to achieve gender equality. These schools also were uncertain about the degree of equalizing necessary in order to avoid lawsuits. In response, the Department of Health, Education, and Welfare (now the DEPARTMENT OF EDUCATION ) established a three-part test for determining whether an institution is complying with Title IX with respect to its athletic program. An institution has accommodated the interests of male and female students if it satisfies any of the three benchmarks: … intercollegiate-level participation oppor- tunities for male and female students are provided in numbers substantially propor- tionate to their respective enrollments; or Where the members of one sex have been and are underrepresented among intercolle- giate athletes, … the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of that sex; or Where members of one sex are under- represented among intercollegiate athletics and the institution cannot show a continuing practice of program expansion, … it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program (44 Fed. Reg. 71,418 [1979]). The balance between a university’s interest in maintaining a profitable and successful athletic program and its need to comply with Title IX is a delicate one. In Kelley v. Board of Trustees, 35 F.3d 265 (1994), the U.S. Court of Appeals for the Seventh Circuit addressed a typical case involving these competing interests. In Kelley, the men’s swim team at the University of Illinois sued the university for violating Title IX after the school cut the men’s, but not the women’s, swimming program in an attempt to eliminate unprofitable athletic pro- grams and to reduce its budget deficit. Although neither swim team was popular with spectators and both programs were historically weak, the university did not cut the wome n’s program because its legal counsel advised that doing so would violate Title IX. The court ruled that eliminating the men’s program, but retaining the women’s program, did not violate Title IX even though the school treated the two programs differently. Title IX continues to have many critics, but the effect it has had on women’s athletics is practically unquestioned. Twenty-four years after the enactment of Ti tle IX, the number of female athletes at the Olympic Games in Atlanta had risen to 287. The interest among spectators was almost startling, especially because women’s athletics had suffered for years in order to garner support. About 65,000 fans watched the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLEGES AND UNIVERSITIES 531 women’s soccer team in 1996 win the gold medal, and another 35,000 spectators watched the women fall in the finals of the softball competition. Interest in women’s sports continued to increase throughout the 1990s. Despite the formation of several professional women’s basketball leagues, few were successful. This changed in 1997 with the establishment of the Women’s National Basketball Association (WNBA), which garnered support from the established National Basketball Association. The league has had unprecedented success, including maintaining contracts with television networks that show the games. The focus on women’s athletics expanded to a national scale in 1999, when the United States women’s soccer team won a stunning victory in the World Cup competition. Neither the men’s nor the women’s soccer teams had had success in world-class competition, and the women’s victory transformed many of the female athletes to celebrity status. Few question that these events would have occurred were it not for Title IX. Women’s college basketball, probably the highest-profiled sport for female athletes, typically receives equal attention as the corresponding men’s programs. Likewise, softball and soccer have gained popularity among individual schools as specta- tor sports. Nevertheless, college and universities continue to pour extensive resources into larger men’s program, especially football and men’s basketball. Many athletic departments note that these men’s programs earn more revenues based upon a much larger fan base, so the support is justified. Athletic departments often chose to drop minor men’s sports instead of adding women’s sports, citing the budgetary con- straints. Advocates for women’s programs counter that cutting the budgets of these programs would not likely hinder the revenues significantly and that it would allow athletic programs to both add women’s programs and retain smaller men’s programs. Policies under the administration of Presi- dent GEORGE W. BUSH came under fire from supporters of women’s athletics. During his campaign, Bush stated his opposition toward any racial or gender quotas, and some felt that this policy could cause conflict with Title IX. In 2002 the secretary of education established the Commission on Opportunity in Athletics, which issued its final report on February 28, 2003. The commission found that opportunities should be improved for all competitors, however, women’s groups claimed that the report undermines the importance of improving opportunities for women’s programs specifically. A report issued in 2005 by the Department of Education caused further controversy. The report suggested that colleges and universities could gauge interest in men’s and women’s sports through the use of surveys. Women’s groups and others criticized the report, while other groups, including a national association of wrestling coaches, applauded the report. President BARACK OBAMA has expressed strong support for Title IX. InMarch 2009, he established the White House Council on Women and Girls, which will consider a number of issues related to women’s rights, including the rights pro- tected by Title IX. Academic Freedom: The Right to Speak Freely The First Amendment prohibits the federal and state governments from infringing on freedom of speech. Freedom of speech, which is central to academic freedom, is highly prized on college and university campuses. At the same time, most educational institutions recognize the impor- tance of maintaining an atmosphere in which all students enjoy equal educational opportunities and freedom from discrimination. The need to balance differing individual rights has led many universities to enact policies purporting to regulate or discipline certain types of speech, and was the focus of many First Amendment cases in the 1980s and early 1990s. Racially and religiously motivated acts of VANDALISM, intimidation, and violence on college campuses began to attract increased attention in the mid-1980s. Much of this activity involved incidents such as the following: n A fraternity fund-raising “slave auction” featuring fraternity members in blackface who were “sold” to provide services to bidders n The distribution at a state school of leaflets warning, “The Knights of the KU KLUX KLAN Are Watching You” n A poster made by a student and hung on her dormitory room door, listing “homos” GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 532 COLLEGES AND UNIVERSITIES as a category of people who would be “shot on sight” In response, many universities adopted policies that prohibited speech and conduct that caused offense or interfered with educa- tional opportunities based on any number of characteristics, especially race, national origin, gender, and religion. The Univ ersity of Michi- gan adopted a typical policy on discrimination and discriminatory harassment that became the subject of a lawsuit in 1989. In Doe v. University of Michigan, 721 F. Supp. 852 (1989), the U.S. District Cour t for the Eastern District of Michigan examined this policy and determined that it violated the First Amendment because it was vague and overbroad—that is, it was unclear about the scope of the speech that it would affect and thus potentially encompassed constitutionally protected speech. Doe was filed by a graduate student who feared that his theories about genetic bases for differences between men’s and wome n’s relative abilities to perform certain tasks would be regarded as a violation of the policy were he to discuss them in class because some students might regard them as sexist and offensive. The court agr eed that the university policy violated the First Amendment and had a “chilling effect” on the free exchange of ideas. The court observed that the policy certainly applied to speech that would not be constitu- tionally protected, such as imminent threats of violence, but also swept under its umbrella speech that might be controversial or even offensive but otherwise constitutionally pro- tected. “It is firmly settled,” noted the court, that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers. These principles acquire a special significance in the university setting, where the free and unfet- tered interplay of competing views is essen- tial to the institution’s education mission. The court then observed that because Michigan’s policy was so vague that it encom- passed even constitutionally protected speech, and because this vagueness led to the potential for arbitrary enforcement, the policy was unconstitutional. First Amendment protection is not limited to the classroom setting alone. In Iota Xi Chapter v. George Mason University, 993 F.2d 386 (1993), the U.S. Court of Appeals for the Fourth Circuit held that George Mason Univer- sity, a state university, had violated the Sigma Chi Fraternity’s First Amendment rights by suspending its privileges as a university organi- zation after the fraternity held an event, called the Ugly Woman Contest, that depicted women in a particularly degrading manner. The court held that skits, like motion pictures, movies, theatrical productions, and nude dancing, are a form of expression that are entitled to First Amendment protection. Public university professors and employees also enjoy First Amendment protection, but as workers in the public sector they are subject to certain limits. Unlike private-sector employees, who may be disciplined or terminated for nearly anything that is not prohibited by state or federal law, public-sector employees may not be disci- plined on the basis of their speech if the speech involves a matter of public concern. The state may discipline an employee if it can show that it would have done so regardless of the speech, or if the speech actually interfered with the effective fulfillment of public responsibilities. In Jeffries v. Harleston, 52 F.3d 9 (1995), the U.S. Court of Appeals for the Second Circuit held that the City College of New York could reduce the term of a black studies professor’s chairmanship based on an off-campus speech he had made (which had includ ed derogatory remarks about Jews) about bias in the New York public-school system. The court ruled that although the speech involved an area of public concern, the college was justified in reducing Jeffries’s term because it was motivated by a reasonable prediction that the speech would adversely affect the school’s operation. In an earlier case, the same court had held that the City College of New York could not undermine a philosophy professor’s classes by setting up “alternative” sessions for students who might want to transfer out of the classes after the professor had published letters to scholarly journals that denigrated the intelligence of blacks (Levin v. Harleston, 966 F.2d 85 [1992]). Even so, not all speech by public university employees is protected. Employees still may be disciplined for speech that does not involve an area of public co ncern, as the courts have defined it. In Dambrot v. Central Michigan University, 839 F. Supp. 477 (E.D. Mich. 1993), aff’d, 55 F.3d 1177 (6th Cir. 1995), the district court upheld the termination of a basketball coach who used the term nigger in a locker-room GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLEGES AND UNIVERSITIES 533 pep talk. The university refused to renew the coach’s employment contract, arguing that his use of the term violated the university’s policy on racial and ethnic harassment. Although the court found that the school’s policy violated the First Amendment (for the same reasons as in Doe), it also found that the coach’s speech did not involve an area of public concern. A public institution may restrict religious speech by faculty if failure to do so would violate the First Amendment’s Establishment Clause (Bishop v. Aronov, 926 F.2d 1066 [1991]). In Bishop, the U.S. Court of Appeals for the Eleventh Circuit held that the University of Alabama could constitutionally restrict a profes- sor from discussing his religious views during class and could instruct him not to hold optional class sessions to discuss Christian perspectives on academic topics. The court noted that were the professor permitted to engage in these activities, the university would risk violating the Establishment Clause, which prohibits states from establishing religion and, by extension, extending preferential treatment to, or endorse- ment of, a particular religious view. Religion and Public Funding The Establishment Clause prohibits states from establishing an official religion. A public univer- sity may not denominate itself as a religious school, nor may the state directly fund a private religious school. At the same time, the Free Exercise Clause prohibits states from restricting individuals in the practice of religion. A public university may not permit all student groups except for religious groups to use its facilities. Maintaining a balance between the two clauses is not simple, and it has generated controversy in two principal areas: the extent to which the state may fund attendance at private religious schools indirectly, and the extent to which public schools may fund religious activities on campus directly. Public Funding of Private Religious Practice In 1971, the U.S. Supreme Court decided Lemon v. Kurtzman, 403U.S.602,91S.Ct.2105,29L.Ed. 2d 745 (1971), which defined the scope of the Establishment Clause. In Lemon, the court held that a state policy or practice violates the Establishment Clause if it fails to satisfy a three- part test: First, the policy must serve a secular purpose. Second, the primary effect of the policy cannot be to advance or inhibit religion. Third, the policy cannot foster an excessive entanglement of the state with religion. Unfortunately, the Lemon test is easier to state than to apply, and it has led to numerous lawsuits concerning the relationship of state- funding programs to private religious organiza- tions. Generally, a state law that provides benefits to individuals without regard to reli - gion does not violate the Establishment Clause even if an individual uses the state benefits for a religious purpose. For example, in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S. Ct. 748, 88 L. Ed. 2d 846 (1986), the U.S. Supreme Court held that a blind Washington resident was eligible for state vocational rehabilitation assistance, even though he planned to use the funds to complete his religious training at a Christian college. The court held that payment of public assistance by the state satisfied the Lemon test because the aid was provided directly to the individual, was not skewed toward religion in any way, and created no financial incentive for students to undertake religious education. Furthermore, the court noted that the primary effect of the assistance program was not to advance religion and that religious programs would not benefit in any significant or disproportionate way from the state program. In contrast, in Stark v. St. Cloud State University, 802 F.2d 1046 (1986), the U.S. Court of Appeals for the Eighth Circuit held that a state university violated the Establishment Clause by permitting education students to satisfy their student-teaching requirement at parochial schools. The court noted that the public univers ity approved the use of religious schools, including them on a list of appropriate schools for student teaching, and that because of this, the university had entangled itself excessively with religion. Public Schools and Religious Activity Fund- ing of religious activities in public schools requires similar balancing. The U.S. Supreme Court held in 1995 that a public university may fund a student-run religious publication without violating the Establishment Clause. In Rosenberger v. Rector of the University of Virginia, 515 U.S.819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995), a sharply divided court considered a Christian student group’ s claim GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 534 COLLEGES AND UNIVERSITIES that the university’s refusal to pay the publica- tion costs of its newspaper, even though it paid the costs of printing other student publications, violated the Free Speech Clause of the First Amendment. The university had convinced the U.S. Court of Appeals for the Fourth Circuit that it had a compelling interest in not funding the newspaper: specifically, to avoid violating the Constitution’s Establishment Clause, which prohibits the government from establishing or promoting religion. Before the U.S. Su- preme Court, the university backed off on this argument and instead stated that it had a right to be selective in its choice of recipients of public funds (i.e., university student fees). The court considered both arguments and found that the university’spolicyregardingthedis- tribution of monies from student fees was neutral, that is, it could not be seen as a policy designed to advance religion; the court there- fore concluded that the f ree spee ch rights of the student publication prevailed and ordered the university to pay the publication costs of the Christian student group’s newspaper. Termination of Employment Claims Colleges and universities have often been the subject of lawsuits by former employees who have been terminated. Many of these claims arise when an institution refuses to grant tenure to a faculty member. In most educational institu- tions, teachers and other faculty members are not guaranteed permanent employment when they are hired for a teaching position. The institution generally requires the teacher or professor to achieve certain goals, such as publishing scholarly articles or demonstrating superior teaching skills, within a prescribed period of time, often six to eight years. In state institutions, the process for granting tenure is usually prescribed by statute. At the conclusion of this time period, an institution reviews the performances of the teacher, professor, or other employee. If the review is favorable, the institution may award tenure to the employee. Although tenure does not necessarily guarantee lifetime employment, it provides considerable protection for the employee from being terminated by the institu- tion. On the other hand, if the employee is denied tenure, he or she will not be retained as an employee of the institution. More often than not, disgruntled former employees lose their cases when they contest denial of tenure. Many contest the tenure process, while others claim breach of contract on the part of the institution. Additionally, several courts have had to consider whether a college or university has violated the constitu- tional rights of an employee by denying him or her tenure. For example, in Hendrich v. Board of Regents of University of Wisconsin System, 274 F.3d 1174 (7th Cir. 2001), the complainant claimed that the University of Wisconsin at Whitewater had violated her equal protection and due process rights when the school denied her tenure. The U.S. Court of Appeals for the Seventh Circuit denied her claims, finding that she had failed to meet the necessary BURDEN OF PERSUASION on these issues. FURTHER READINGS Census Bureau. Statistical Abstract of the United States. Available online at http://www.census.gov/compendia/ statab/; website home page: http://www.census.gov (accessed May 16, 2009). Eisenberg, Theodore. 2004. Civil Rights Legislation: Cases and Materials. 5th ed. Charlottesville, VA: Michie. Kaplin, William A., and Barbara A. Lee. 1997. Legal Guide for Student Affairs Professionals. San Francisco: Jossey- Bass. ———.1995.Law of Higher Education. 3d ed. San Francisco: Jossey-Bass. Perry, Barbara A. 2007. The Michigan Affirmative Action Cases. Lawrence: University Press of Kansas. “National Association of College and University Attorneys and the Notre Dame Law School.” Journal of College and University Law. Information available online at: http://www.nd.edu/~jcul/current_issue.html (accessed June 15, 2009). CROSS REFERENCES Religio n; School Desegregation; Schools and School Districts. v COLLIER, WILLIAM MILLER William Miller Collier was born November 11, 1867, in Lodi, New York. He graduated from Hamilton College with a bachelor of arts degree in 1889 and a master of arts degree in 1892. He was the recipient of several other degrees from various institutions , including an honorary doctor of laws degree from New York University in 1920; a doctor of CIVIL LAW degree from Wesleyan University in 1920; and a doctor of letters and humanities degree from Hobart College in 1920. After his admission to the New York bar in 1892 Collier established his law firm in Auburn and practiced law until 1903. From 1903 to 1904 he performed the duties of special assistant GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLLIER, WILLIAM MILLER 535 to the U.S. attorney general where his main task was the enforcement of antitrust laws. In 1905 Collier entered the diplomatic field and for the next four years he served as U.S. minister to Spain. Collier’s next field of endeavor was that of education. He presented a series of lectures on INTERNATIONAL LAW at New York Law School from 1912 to 1918. He became president of GEORGE WASHINGTON Uni- versity in that same year and served in this capacity for the next three years. In 1921 Collier reentered the foreign service and served as ambassador to Chile until 1928. Collier was the author of several noteworthy publications, including Collier on Bankruptcy (1898); Collier on CIVIL SERVICE Law (1901); The Trusts: What Can We Do with Them—What Can They Do for Us? (1900); and The Influence of Lawyers in the Past and in the Future (1921). He died April 15, 1956, in West Caldwell, New Jersey. COLLISION The violent contact of one vehicle—such as an automobile, ship, or boat—with another vehicle. Collision insurance is a type of policy that motorists purchase to cover property losses in the event of a car accident. A collision that does not result from the NEGLIGENCE of either vessel involved is consid- ered to be an inevitable accident. In the event of an inevitable accident, neither party is liable to the other, but each bears his or her own individual losses. Exclusion from FAULT is ordi- narily determined with reference to the safe- guards observed by the parties to the inevita ble accident. COLLUSION An agreement between two or more people to defraud a person of his or her rights or to obtain something that is prohibited by law. A secret arrangement wherein two or more people whose legal interests seemingly conflict conspire to comm it fraud upon another person; a pact between two people to deceive a court with the purpose of obtaining something that they would not be able to get through legitimate judicial channels. William Miller Collier 1867–1956 ▼▼ ▼▼ 18501850 19001900 19251925 19501950 19751975 18751875 ◆◆◆ ◆ ◆ ❖❖ 1861–65 U.S. Civil War 1867 Born, Lodi, N.Y. 1892 Admitted to New York bar and established practice in Auburn, N.Y. 1898 Collier on Bankruptcy first published 1898 Spanish-American War 1903 Served as special assistant to the U.S. attorney general, specializing in antitrust legislation 1905–09 Served as U.S. minister to Spain 1912–18 Presented lectures on international law at New York Law School 1914–18 World War I 1918 Became president of George Washington University 1921–28 Served as ambassador to Chile 1939–45 World War II 1961–73 Vietnam War 1950–53 Korean War 1956 Died, West Caldwell, N.J. William Miller Collier. LIBRARY OF CONGRESS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 536 COLLISION Collusion has often been used in DIVORCE proceedings. In the past some jurisdictions made it extremely difficult for a couple to obtain a divorce. Often a “sweetheart” agreement would take place, WHEREBY a husband or wife would commit, or appear to commit, ADULTERY or other acts that would justify a divorce. The PUBLIC POLICY against collusive divorces is based on the idea that such actions would conflict with the effective administration by society of laws on marriage and divorce and would undermine marriage as a stabilizing force in society. Virtually all jurisdictions have adopted no- fault divorce statutes or laws that allow a couple to obtain a divorce without traditional fault grounds, such as adultery or CRUEL AND INHUMAN TREATMENT . Because of this develop- ment, collusive divorces should diminish in number, because it will no longer be necessary for persons seeking a divorce to resort to such measures. The fundamental societal objection to col- lusion is that it promotes dishonesty and FRAUD, which, in turn, undermines the integrity of the entire judicial system. COLOR The appearance or sembl ance of a thing, as distinguished from the thing itself. The thing to which the term color is applied does not necessarily have to possess the character imputed to it. A person who holds land under COLOR OF TITLE does not have actual title to it. COLOR OF LAW The appearance of a legal right. The act of a state officer, regardless of whether or not the act is within the limits of his or her authority, is considered an act under COLOR OF LAW if the officer purports to be conducting himself or herself in the course of official duties. Under the CIVIL RIGHTS Act of 1871 (42 U.S.C.A. § 1983), color of la w is synonymous with STATE ACTION, which is con- duct by an officer that bears a sufficiently close nexus to a state so that the action is treated as though it is by the state. CROSS REFERENCE Ku Klux Klan Act. COLOR OF OFFICE A description of an act by an officer done without authority under the pretext that he or she has an official right to do the act by reason of the officer’s position. An officer acts under COLOR OF OFFICE when he or she extracts a fee from another under the pretense that the office confers the authority on him or her to do so. Such conduct may constitute EXTORTION, a crime proscribed by statute in most states. The penalty imposed on a public officer for extortion may include FORFEI- TURE of office in addition to a fine, IMPRISONMENT, or both. COLOR OF TITLE The appearance of a legally enforceable right of possession or ownership. A written instrument that purports to transfer ownership of property but, due to some defect, does not have that effect. A document purporting to pass title to land, such as a deed that is defective due to a lack of title in the grantor, passes only color of title to the grantee. It has been held that in order to pass color of title, the instrument appearing to pass title must be in good form, duly executed, and profess to pass good title. COLORABLE False; co unterfeit; something that is false but has the appearance of truth. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION COLORABLE 537 . of VMI” in terms of its educational and leadership opportunities. Title IX Eight years after Congress enacted Title VI of the Civil Rights Act of 1964, it GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD. Rector of the University of Virginia, 515 U.S.819, 115 S. Ct. 25 10, 1 32 L. Ed. 2d 700 (1995), a sharply divided court considered a Christian student group’ s claim GALE ENCYCLOPEDIA OF AMERICAN LAW, . BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 528 COLLEGES AND UNIVERSITIES policies. Such policies