Make Room for Fido: Recent Legal Trends Support Requiring Colleges and Universities to Permit Emotional Support Animals in Student Housing

Make Room for Fido: Recent Legal Trends Support Requiring Colleges and Universities to Permit Emotional Support Animals in Student Housing

Neal H. Hutchens
The Pennsylvania State University

Colleges and universities are well acquainted with the requirement to permit students with physical disabilities to possess assistance animals in student housing, namely per the standards under the Americans with Disabilities Act (ADA). A more complicated legal question deals with the issue of assistance animals for emotional support (Lipka, 2011). Emerging legal trends suggest colleges and universities should be prepared to make such accommodations for emotional support animals, specifically under the requirements of the Fair Housing Act (FHA) and Section 504 of the Rehabilitation Act. Examining recent legal developments, this column considers a lawsuit brought by the United States against the University of Nebraska at Kearney to permit a student diagnosed with depression and anxiety to have a therapy dog in student housing. It also reviews recent guidance issued by the U.S. Department of Housing and Urban Development (HUD) addressing the use of service and assistance animals for individuals with disabilities, including the use of service animals for “emotional support.”

United States v. University of Nebraska at Kearney

In United States v. University of Nebraska at Kearney (2013), the United States, acting on behalf of a student, challenged the university’s decision to prohibit the student, diagnosed with depression and anxiety, from having a therapy dog in student housing. According to the opinion, a trained therapy dog had been prescribed to the student to assist her in responding to anxiety attacks. The University of Nebraska at Kearney (UNK) denied the student’s request to have the animal under its no-pets policy. Rejecting various arguments by the institution, a federal district court held that the FHA entitled the student to have the therapy dog in university-owned housing.

Early in the opinion, the court outlined several characteristics of UNK’s student housing it considered in determining whether such housing was covered under the FHA. The court noted that most students living in campus housing did not list the location as their permanent address. The court also discussed that students under nineteen were required to live in university housing subject to certain exceptions. In addition, typical of many colleges and universities, most university housing at UNK closed during academic breaks. The student involved in the lawsuit lived in apartment-style housing for families and students over twenty-one. These apartments contained a kitchen area and students also could remain in them during academic breaks. After describing aspects of UNK’s student housing, the opinion then turned to the requirements of the FHA.

The court stated that the FHA makes it impermissible to deny an individual a dwelling on the basis of disability. The court discussed that a dwelling constituted “any building, structure, or portion thereof which is occupied as, or designed or intended for occupancy as, a residence by one or more families . . . .” (United States v. University of Nebraska at Kearney , 2013, p. 2). Since the FHA does not define residence, the court stated that it had to determine whether student housing qualified as a dwelling under the FHA. In making this assessment, the court noted that previous legal decisions had established that the requirements of the FHA should be interpreted liberally.

The university advanced several rationales for why student housing should not constitute a dwelling for purposes of the FHA. First, the institution argued that students represented transient visitors not having an intention to make university housing their permanent residence. Rejecting this argument, the court declared that under the FHA a residence may be temporary or permanent. According to the opinion, “UNK’s students obviously do not intend to live in university housing for the rest of their lives. But they do intend to live in university housing for extended periods of time that are roughly comparable to many other residential living situations. And that is all the FHA requires” (United States v. University of Nebraska at Kearney , 2013, p. 3).

The university contended as well that student housing did not constitute a residence under the FHA because many students are assigned rooms and roommates and are subject to more stringent rules than usually associated with residential housing. In making these arguments, UNK asserted that the purpose of attending a university primarily reflects educational aims rather than providing students a residence. The court found these arguments unpersuasive and also commented that the university’s efforts to rely on legal decisions excluding jails as dwellings for purposes of the FHA to support its arguments resulted in an “unflattering association between university housing and jail” (United States v. University of Nebraska at Kearney , 2013, p. 4). While acknowledging that university housing serves pedagogical purposes, the court stated that “the primary way in which student housing furthers the educational mission of a college or university is by providing students with a place to live while they pursue their education” (p. 5). The court noted that while students in university housing must comply with various rules and restrictions, they are in no way akin to prisoners in terms of the freedom of choice concerning where to live, pointing out that students have the freedom to enroll or not enroll in an institution.

In deciding whether student housing should fall under the purview of the FHA, the court deemed it significant that HUD categorized dormitory-type rooms as a dwelling unit under the FHA in relation to disability discrimination. This meant that HUD had determined that residences where individuals have separate sleeping quarters but share dining and/or bathroom facilities must comply with the disability provisions of the FHA. Pointing out that HUD constitutes the federal agency charged with implementing the FHA, the court discussed how an agency’s interpretation of a statute under such circumstances received substantial deference from courts. Brushing aside several points of contention raised by the university, the court declared, “It suffices to conclude that HUD’s definition of a ‘dwelling unit’ as including a dormitory is compelling authority supporting the conclusion that UNK’s housing facilities are ‘dwellings’ within the meaning of the FHA” (United States v. University of Nebraska at Kearney , 2013, p. 7).

The court rejected several other challenges made by the university, including the position that student housing should not constitute a dwelling under the FHA because the U.S. Department of Justice, for purposes of the ADA, classified educational housing as “transient lodging” rather than as a residential facility under the act. The court responded that such a designation did not address whether educational housing was subject to the ADA, the issue in dispute in relation to the FHA. Instead, the designation of educational housing as transient lodging for purposes of the ADA dealt with how the law should apply to such housing (i.e., what type of accessibility educational housing needed to provide). The court pointed out how “in some respects, the ADA compliance standards for transient lodging are more onerous than those for residential facilities” (United States v. University of Nebraska at Kearney , 2013, p. 8).

While UNK raised potential concerns regarding application of the law to educational housing, such as the FHA limiting the use of housing segregated by gender, the court found these arguments unpersuasive. It responded that the “parade of horribles” presented by the university if the FHA applies to educational housing appeared unrealistic (United States v. University of Nebraska at Kearney, 2013, p. 8). Even if not baseless concerns, the court responded that it could not misconstrue the meaning of dwelling under the FHA. If needed, stated the court, colleges and university could turn to Congress to amend the statute or seek regulatory relief from HUD.

HUD Guidance on Service and Assistance Animals in Housing

In guidance issued earlier this year by HUD, the agency addressed the use of service and assistance animals in housing subject to the provisions of Section 504 of the Rehabilitation Act, the ADA, and the FHA. Relevant to this column, the guidance included discussion of the use of animals for emotional assistance. In relation to the FHA and Section 504, the document begins by noting that the reasonable accommodation provisions of both laws for persons with disabilities must be followed even in situations where a housing provider “forbids residents from having pets or otherwise imposes restrictions or conditions relating to pets and other animals” (HUD, 2013, p. 2).

The guidance discusses that while emotional support animals are expressly excluded from qualifying as service animals under the ADA, the same is not true for the FHA and Section 504. The HUD guidance explains that these two laws include assistance animals that provide “emotional support” in addition to animals giving physical assistance. HUD points out that neither the FHA nor Section 504 requires an assistance animal to be trained or certified, a requirement under the ADA.

As explained in the document, once receiving a request for a reasonable accommodation under the FHA or Section 504, a housing provider must consider whether the individual has a physical or mental disability that substantially limits one or more major life activities. If so, then the next step for consideration involves whether the requested animal provides assistance that alleviates one or more symptoms or effects of the person’s disability. If both of these circumstances are satisfied, a housing provider may still deny a request if:

  1. the specific animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or
  2. the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation (HUD, 2013, p. 3).

In assessing whether an animal might fall under one of these exceptions, the guidance discusses that generic exclusions based on breed, size, and weight limitations cannot be applied. HUD directs that:

[a] determination that an assistance animal poses a direct threat of harm to others or would cause substantial physical damage to the property of others must be based on an individualized assessment that relies on objective evidence about the specific animal’s actual conduct-not on mere speculation or fear about the types of harm or damage an animal may cause and not on evidence about harm or damage that other animals have caused (HUD, 2013, p. 3).

In addition, a housing provider is not permitted to require a fee or deposit for an individual as a condition of having an assistance animal.

A university housing provider, as explained in the guidance, may under the FHA and Section 504 seek documentation from an individual regarding the existence of a disability and the need for an assistance animal when it is not apparent that the individual has a disability or that an assistance animal would help to provide assistance or alleviate a symptom of an individual’s disability. For instance:

[a] housing provider may ask persons who are seeking a reasonable accommodation for an assistance animal that provides emotional support to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides emotional support that alleviates one or more of the identified symptoms or effects of an existing disability (HUD, 2013, p. 3).

A housing provider, however, cannot try to obtain access to medical records or medical providers or ask for “detailed or extensive information or documentation of a person’s physical or mental impairments” (p. 4).

The HUD guidance discusses that certain housing providers, including educational housing providers, may be subject to the service animal requirements of the ADA and of the FHA and ADA. In such instances, a housing provider must comply with both sets of requirements. That is, compliance with the ADA does not ensure compliance with the FHA or Section 504, just as compliance with these two statutes does not mean that an institution has satisfied ADA standards. The guidance emphasizes that the definition of a service animal under the ADA may not be relied upon to deny an individual an assistance animal, including for emotional support, as defined in the FHA or Section 504. Accordingly, even if an assistance animal does not qualify under the ADA, a covered housing provider must still consider if the animal should be permitted under the FHA or Section 504.

Conclusion

Absent a reversal in legal momentum, recent developments suggest that, as with assistance animals for students with physical disabilities, higher education institutions should be prepared to permit animals prescribed to students for emotional support. A key legal issue involves whether other courts agree with the position taken in the UNK litigation that educational housing falls under the FHA. The United States acting as the plaintiff in the suit against UNK and the recent HUD guidance suggest strong federal support for requiring institutions to permit animals in student housing for purposes of emotional support. As such, colleges and universities should be ready to make room in student housing for emotional support animals for qualifying students.

Discussion Questions

  1. What are your institution’s policies and procedures regarding permitting students to have animals for emotional support, including in relation to the requirements of the FHA and Section 504?
  2. Is your institution prepared to make adjustments, if legally mandated, to accommodate students prescribed emotional support animals?

References

Lipka, S. (2011, October 11). Federal case over banning a student’s therapy dog illustrates thicket of disability rules. Chronicle of Higher Education. Retrieved from http://chronicle.com/

United States Department of Housing and Urban Development. (2013). Service animals and assistance animals for people with disabilities in housing and HUD-funded programs. Retrieved from

United States v. University of Nebraska at Kearney, No. 4:11-CV-3209, 2013 WL 1694603 (D. Neb. April 19, 2013).

About the Author

Neal H. Hutchens is an associate professor in the Higher Education Program in the Department of Education Policy Studies at The Pennsylvania State University.

Please e-mail inquiries to Neal H. Hutchens.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.

More than another affirmative action case: Laws that suppress racial minority voices

More than another affirmative action case: Laws that suppress racial minority voices

Jeffrey C. Sun
University of North Dakota

Overview

On March 25, 2013, the U.S. Supreme Court announced that in its new term beginning in October 2013, it would review another affirmative action case, Schuette v. Michigan Coalition to Defend Affirmative Action (BAMN).1 The plaintiffs in this case are a group of faculty members, prospective students, and then current students at the University of Michigan along with a group known as the Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). The organization leading the suit is often referred to as BAMN, which is an acronym constructed from the last four letters of the organization’s name. Could it be true? Two affirmative action cases within two years? Just last year, Neal Hutchens (2012) wrote in Developments about a then-upcoming case, Fisher v. University of Texas. In October 2012, the Supreme Court heard oral arguments for the Fisher case, which questions the use of race in college admissions for applicants who are not admitted based on their standing in the top 10% of their high school class. However, the Fisher case and those that preceded it faced a different line of legal analysis than what the upcoming BAMN case presents.

Previous Affirmative Action Cases

To recap from Hutchens’ (2012) article, several U.S. Supreme Court cases precede Fisher. In Regents of the University of California v. Bakke (1978), the Court provided three key legal lessons for higher education administrators. First, an admissions practice that uses a separate evaluation system (e.g., a separate evaluation committee and criteria) for minority applicants is impermissible. Second, a quota system based on race (i.e., a predetermined number of slots for racial minorities) is impermissible. Third, individualized applicant reviews, which are not based on a predetermined number of slots, may use race among one of many factors such as plus-point for racial minorities.

Then in 2003, the Court made clear from both Gratz v. Bollinger and Grutter v. Bollinger that race may be factored into admissions decisions with some limitations. According to Gratz (2003), we learned that awarding points for race is not acceptable when such a point system essentially places race as the decisive factor, not one of many factors of an overall applicant’s review. Grutter (2003) clarified the parameters further, stating: “Universities can, however, consider race or ethnicity more flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant” (p. 334). In that case, the school’s use of race as a plus factor was part of an evaluation system that reviewed applications in a highly individualized, holistic process, so the use of race was clearly not a decisive factor. Stated another way, the Grutter case also informed higher education administrators that diversity may serve as a compelling interest. The opinion indicated that courts should defer to the University’s educational judgment as to whether diversity “is essential to its educational mission” (Grutter, 2003, p. 328). Thus, educational institutions have some levels of professional decision-making. Finally, Gratz emphasized that these policies emerge under protections from the 14th Amendment, which applies to public colleges,2 and from Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race in educational programs or activities that receive federal financial assistance. Title VI applies to public and private colleges that receive federal financial assistance – which includes all public colleges and nearly all private colleges. Thus, these decisions are quite important to everyone in higher education.

The New Case

Before and after Gratz and Grutter, selected states started to pass bans prohibiting the use of race as a criterion for admission into public colleges. In November 2006, the state of Michigan joined three other states in passing a legal ban on race conscious admissions policies. In Michigan, the electorate voted through a state referendum, which is often referred to as Proposal 2, to ban race conscious admissions policies. Proposal 2 actually blocks the use of race and other factors in state operations, but the critical application here is the use of race for college admissions. In this case, the BAMN group got together and filed suit to contest the constitutionality of this state law. The defendants include the University of Michigan, Michigan State University, Wayne State University, and the State of Michigan.3

In 2008, a district court judge ruled on several motions about the case (BAMN, 2008). At that time, the judge ruled in favor of the State of Michigan finding no Equal Protection violation from Proposal 2. The plaintiffs appealed. In 2011, the Sixth Circuit for the U.S. Court of Appeals reversed the district court’s decision. That appellate panel ruled 2-1 that Proposal 2 provisions pertaining to higher education impermissibly alter the political process for racial minorities, thus making it illegal under the Equal Protection Clause (BAMN, 2011). Later, the whole Sixth Circuit panel decided to hear the case. In an 8-7 decision, the court upheld the ruling that Proposal 2 is unconstitutional. These decisions are held without any action until the Supreme Court decides the case.

In analyzing the BAMN case, the appellate courts referred to the political restructuring doctrine, which addresses the non-neutral allocation of power that places special burdens on racial minorities within the governmental process. To determine if the policy violates the Equal Protection Clause of the 14th Amendment, the court applied the political restructuring framework asking: (1) does the law have a racial focus targeting a policy of program that primarily benefits minorities, and (2) does the law reallocate political power or reorder the decision-making process in such a way that it places special burdens on minority groups to achieve their policy interests?

For the first prong, the court recognized that Proposal 2 has a racial focus in targeting the elimination of race conscious policies. For the second prong, the court examined two sub-parts: the political power and the special burdens on minorities. The court established that relevant admissions procedures are part of the political process. Noting the state of Michigan’s procedures for changing the admissions policies, the court observed that Michigan has elected governing boards, who set admissions policies. While responsibilities for day-to-day activities reside with campus administrators, the board exercises ultimate authority over admissions policies “making the policies themselves part of the political process” (BAMN, 2012, p. 482). As a noteworthy distinction, the court indicated that if the board did not have power and the control rested with the “politically unaccountable faculty members or admissions committees,” then the law would have had little impact on the political process and not met the second prong (BAMN, 2012, p. 480). Since the board had the authority and the law reordered the decision-making process, the court next conducted a comparative structural burden analysis. That is, it compared the political channels required to seek an admissions policy change. Table 1 displays the court’s tracing of the steps for a non-race admissions policy change and a race conscious admissions policy change.

Table 1: Comparing the Political Process

Non-Race Admissions Policy Change Race Conscious Admission Policy Change
[A] citizen interested in admissions policies benefitting legacy applicants—sons and daughters of alumni of the university—may lobby the admissions committees directly, through written or in-person communication. He may petition higher administrative authorities at the university, such as the dean of admissions, the president of the university, or the university’s board. He may seek to affect the election—through voting, campaigning, or other means—of any one of the eight board members whom the individual believes will champion his cause and revise admissions policies accordingly. And he may campaign for an amendment to the Michigan Constitution (BAMN, 2012, p. 484). [T]he campaign for a constitutional amendment—is the sole recourse available to a Michigan citizen who supports enacting such policies. That citizen must now begin by convincing the Michigan electorate to amend its constitution—an extraordinarily expensive process and the most arduous of all the possible channels for change. Just to place a proposed constitutional amendment repealing Proposal 2 on the ballot would require either the support of two-thirds of both the Michigan House of Representatives and Senate…or the signatures of a number of voters equivalent to at least ten percent of the number of votes cast for all candidates for governor in the preceding general election. Once on the ballot, the proposed amendment must then earn the support of a majority of the voting electorate to undo Proposal 2’s categorical ban. After this successful constitutional amendment campaign, the citizen could finally approach the university—by petitioning the admissions committees or higher administrative authorities—to request the adoption of race-conscious admissions policies. By amending the Michigan Constitution to prohibit university admissions units from using even modest race-conscious admissions policies, Proposal 2 thus removed the authority to institute any such policy from Michigan’s universities and lodged it at the most remote level of Michigan’s government, the state constitution (BAMN, 2012, p. 484).

Based on the analysis, which I placed in Table 1, the court concluded that racial minority students face the highest possible barrier to enact change compared to other non-race policies. In light of the review of the Michigan’s Proposal 2 to the two-prong test, the court ruled in favor of BAMN. The State Attorney General Bill Schuette filed an appeal to the U.S. Supreme Court and on March 25, 2013 the Court granted a hearing.

Not Just Another Affirmative Action Case

Following the March 25, 2013 announcement of the Supreme Court’s upcoming review of BAMN, I heard and received emails from colleagues across the nation referencing this case as “another affirmative action case” on college admissions. I suppose that it may seem that way. Even Inside Higher Ed and the Washington Times headlined the news as “another affirmative action case” (Jaschik, 2013; Sherman, 2013). Similarly, on the front page of the Chronicle of Higher Education (2013), it highlighted the story as “Affirmative Action at Issue Once More” (p. A1). Sure, the case is about the contested Michigan referendum, which prohibits the use of race in college admissions, but as many thorough reporters such as Scott Jaschik (2013), Peter Schmidt (2013), and Mike Sherman (2013) made clear, this case is unlike past affirmative action cases before the U.S. Supreme Court. The issue in this case is not simply about whether diversity is a constitutionally permissible factor in admissions at public colleges. Instead, this case questions the constitutionality of the state referendum as a legal mechanism barring individuals based on race from taking action on their behalf. More specifically, this case is about whether the Michigan ban on affirmative action unfairly blocks access to racial minorities from being able to participate in the political process in such a burdensome manner that they cannot achieve their policy interests. Put simply, it’s not just about affirmative action in college admissions; it’s about the constitutional conceptions of fairness within the political process for racial minorities to enact change without special burdens.

Significance

This case is significant for several reasons.

1. Two federal appellate courts disagree.
The circumstances in the BAMN case resemble one from 1997. In that case, Coalition for Economic Equity v. Wilson, the plaintiffs contested the 1996 California referendum (also known as Proposition 209) that also banned race and gender-conscious policies in public operations such as college admissions at all of its public colleges or universities. Except, in the California referendum case, the Ninth Circuit for the U.S. Court of Appeals ruled in favor of the State of California and was not persuaded by the political restructuring argument. In BAMN the Sixth Circuit of the U.S. Court of Appeals ruled in favor of the plaintiffs, who argued that banning race violated the minorities’ equal protection through the law.

2. Judicial value of diversity and minority rights might be illuminated.
We have a better sense about the legal value of diversity in college admissions. In the 2003 Grutter case, the U.S. Supreme Court ruled that race is permissible as a factor for admission when applications are reviewed in a highly individualized, holistic manner. Depending on the statements made and the analytic approach, observers may have a better sense of where the Court stands on issues pertaining to minorities’ rights and the Court’s appreciable understanding of the high barriers for minorities with such laws. This insight is especially important in light of the changes in the Court’s composition4 since we last had an announced affirmative action decision.5

3. Eight state bans on affirmative action already exist.
There are eight states (AZ, CA, FL, MI, NE, NH, OK, and WA) with bans on affirmative action, and while those bans do not necessarily have the same set of facts to match this case, it’s quite possible that whatever happens in this case will alter the status of those bans. Further, there are states that are considering bans on affirmative action or may consider such bans depending on this case’s outcome.

4. State referenda challenges for other matters, besides race, may emerge.
This case is as much (and even more so) about state referenda as it is about affirmative action. A decision on this case may clarify the legal limits of state referenda. Scott Jaschik (2013) conveys quite well the connection between the Michigan Proposal 2 matter with other state referenda such as “California’s Proposition 8, which barred gay marriage in the state” (p. 1). As Jaschik and others rightly observe, these cases share legal issues about the denial of rights to selected individuals when a majority comes in to set the high standard for the insulated minorities to exercise their rights. Viewed another way, we may have a better understanding of political process and civil rights.

Immediate Action

With the conflict between the Ninth Circuit’s decision regarding California’s Proposition 209 and the Sixth Circuit’s decision regarding Michigan’s Proposal 2, the U.S. Supreme Court will need to determine how to analyze this case. It is quite likely that the Court may examine the same two prongs that the Sixth Circuit used.

In preparation for that application, student affairs professionals at public colleges and universities, particularly those with state referenda (i.e., AZ, CA, MI, NE, OK), should be evaluating and reporting the process in which students and other state citizens may enact changes to admissions policies. I strongly recommend that public colleges and universities, led by student affairs professionals, construct a committee to gather the data and lead such actions. The committee should analyze the process for a non-race-conscious policy and a race-conscious policy. Specifically, student affairs professionals should conduct a comparative structural burden analysis asking if a state ban does or would reorder the decision-making process and describe the expense, length, and complexity of each process. After collecting and analyzing data, the committee should write an internal report or a publicly disseminated white paper on the findings and recommendations.

Discussion Questions

  • Does your state have, or has it discussed, a law that bans consideration of race or gender from state operations, including college admissions?
  • Describe your current process in making admissions policies. When discussing the process, speak in terms of expense, length, and complexity of each process. What are the mechanisms or opportunities in which students, particularly racial minorities, may take to enact changes to the admissions policy?
  • How might you educate students about the notion of barriers in the law for racial minorities and other insulated minority groups?
  • What state level bans have been entertained or passed in your state (e.g., English only materials from state agencies, prohibiting gay marriage, barring undocumented students from enrollment or in-state tuition)?

Notes

  1. The full name of the Respondent in this case is Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN). The organization is often referred to as BAMN, which is an acronym constructed from the last four letters of the organization’s name.
  2. For purposes of this article, the term “colleges” refers to colleges and universities.
  3. The State of Michigan established the University of Michigan, Michigan State University, and Wayne State University with different authority and control, so each of those institutions have their own boards and maintain greater autonomy than the other colleges and universities in the State. The other colleges and universities in Michigan follow a different board model governed directly by the State.
  4. Justice Elena Kagan has recused herself from this case. Her recusal is likely because of her conflicts arising from previous role as U.S. Solicitor General.
  5. Of course, we will also find out soon the status of Fisher v. University of Texas at Austin.

References

Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997).

Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp.2d 924 (E.D. Mich. 2008). [BAMN, 2008]

Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 652 F.3d 607 (6th Cir. 2011). [BAMN, 2011]

Coalition to Defend Affirmative Action v. Regents of the Univ. of Mich., 701 F.3d 466 (6th Cir. 2012) (en banc). [BAMN, 2012]

Daniels, P. T. K., Gee, E. G., Sun, J. C., & Pauken, P. D. (2012). Law, policy, and higher education. New Providence, NJ: Matthew Bender & Company (LexisNexis).

Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir. 2011) cert. granted, 132 S.Ct. 1536 (2012).

Gratz v. Bollinger, 539 U.S. 244 (2003).

Grutter v. Bollinger, 539 U.S. 306 (2003).

Hunter v. Erickson, 393 U.S. 385 (1969).

Hutchens, N. H. (2012). Supreme Court to revisit issue of race as a factor in higher education admissions. Developments, 10(2), Retrieved from http://www2.myacpa.org/developments/summer-2012/supreme-court-to-revisit…

Jaschik, S. (2013, Mar. 26). Another affirmative action case. Inside Higher Ed. Retrieved from http://www.insidehighered.com/news/2013/03/26/supreme-court-takes-anothe…

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

Schmidt, P. (2013, Apr. 5). Supreme Court to look at Michigan’s ban on race-conscious admissions. Chronicle of Higher Education, p. A14.

Sherman, M. (2013, Mar. 25). Supreme Court to hear another affirmative-action case. Washington Times. Retrieved from http://www.washingtontimes.com/news/2013/mar/25/supreme-court-hear-anoth…

Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982).

About the Author

Jeffrey C. Sun is an associate professor of educational leadership/higher education and affiliate associate professor of law at the University of North Dakota. He teaches and writes about legal issues pertaining to higher education.

Please e-mail inquiries to Jeffrey C. Sun.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Staff Office.

The (Lack of) Speech Rights of Student Affairs Professionals

The (Lack of) Speech Rights of Student Affairs Professionals

Neal H. Hutchens
University of Kentucky

Issues involving speech and academic freedom in higher education regularly receive attention in scholarly literature and the media, but typically in regards to student or faculty speech. These conversations rarely involve issues related to the speech of student affairs professionals. As a small step in helping to fill this gap in the literature, I will consider legal standards relevant to the speech rights of student affairs professionals when carrying out their employment duties. A review of pertinent legal standards reveals that, in many instances, student affairs professionals often have limited legal protection for their work-related speech.

To provide some useful context, I first review the shaky legal status of constitutional protection for academic freedom, even for faculty speech directly related to teaching and scholarship. Next, I consider First Amendment standards affecting the speech rights of student affairs professionals at public colleges and universities. In particular, I discuss the implications arising from a 2006 U.S. Supreme Court case, Garcetti v. Ceballos. The column also considers legal standards influencing the speech rights of student affairs professionals at private colleges and universities in addition to those in public higher education.

Academic Freedom and the First Amendment: An Ambiguous Legal Relationship

The concept of academic freedom deals with some of the fundamental purposes of the higher education enterprise, particularly in relation to issues involving teaching and scholarship. Despite the fact that the U.S. Supreme Court has described academic freedom as a “special concern” of the First Amendment, the Court’s decisions have failed to provide clear legal standards that define the academic freedom rights of individuals, whether students, faculty, or staff (Jorgensen & Helms, 2008; Tepper & White, 2009).

Academic freedom first received attention from the Supreme Court in a dissenting opinion in 1952 (Adler v. Board of Education). The issue of academic freedom arose as part of the judiciary’s efforts to curb governmental abuses in the McCarthy era related to attempts to root out perceived Communist plots to infiltrate American society during the Cold War (Tepper & White, 2009). A well-known concurring opinion in 1957 by Justice Felix Frankfurter argued for the need to safeguard intellectual independence at the nation’s colleges and universities (Sweezy v. New Hampshire). Looking to a statement from South African scholars, he discussed the importance of ensuring that higher education institutions should possess the authority to decide, “‘who may teach, what may be taught, how it shall be taught, and who may be admitted to study’” (Sweezy, 1957, p. 263). In 1967, discussion of academic freedom made its way into a majority opinion in Keyishian v. Board of Regents. The Supreme Court discussed the significance of protecting free speech and inquiry in the nation’s educational institutions, describing academic freedom as a “special concern of the First Amendment” (Keyishian, 1967, p. 603)

Despite the strong language in Keyishian and professed support for academic freedom in subsequent decisions (e.g., Grutter v. Bollinger, 2003), the Supreme Court has not provided clear constitutional standards regarding First Amendment protection for individual academic freedom. In fact, legal debate has arisen whether First Amendment protection for academic freedom, if deserving legal recognition at all, should only extend to institutions and not to individuals (Byrne, 1989; Finkin, 1983; Horwitz, 2007; Rabban, 1990).

The ambiguity of the academic freedom cases resulted in courts looking to legal standards dealing with the First Amendment speech rights of public employees in general when considering claims that implicated academic freedom concerns (Areen, 2009; Jorgensen & Helms, 2008; Tepper & White, 2009). However, reliance on this line of cases has proven problematic, creating legal uncertainty and controversy. A 2006 Supreme Court case involving public employee speech, Garcetti v. Ceballos, again raised questions regarding the extent to which individual academic freedom is subject to First Amendment protection. At the same time, the decision resulted in significant limits on when public employees, including student affairs professionals in public higher education, could look to the First Amendment to protect their work-related speech.

Garcetti v. Ceballos Imposes Rigid Test for Public Employee Speech Rights

Garcetti v. Ceballos (2006) involved a deputy district attorney, Richard Ceballos, who recommended the dismissal of a criminal case based on his belief that law enforcement officials had made certain misrepresentations in order to obtain a search warrant. Ceballos discussed his concerns with supervisors and wrote a memorandum recommending the case’s dismissal. His superiors refused to accept his recommendation, and Ceballos eventually revealed his views at a hearing during questioning by the defense. Ceballos claimed in an ensuing lawsuit that he suffered retaliation from his superiors in violation of his First Amendment rights. Specifically, he argued that the memorandum he wrote qualified for First Amendment protection. A U.S. District Court ruled against Ceballos, but the U.S. Court of Appeals for the Ninth Circuit determined that Ceballos had engaged in protected First Amendment expression in writing the memorandum.

The Supreme Court, overturning the Ninth Circuit, held that Ceballos could not rely on the First Amendment for his work-related speech. Creating a bright-line legal test, the Supreme Court decided that speech or expression made by a public employee as part of carrying out official job duties was ineligible for First Amendment protection. While the Court reserved the possibility for some type of exception to this test for faculty speech involving academic freedom concerns, the Garcetti standards mean student affairs professionals are unable to receive First Amendment protection for speech determined to be made as part of carrying out official job duties. Speech not made as part of carrying out one’s official employment responsibilities (i.e., speech in a private capacity) is eligible to receive First Amendment protection if: (1) the speech deals with an issue determined by a court to address a matter of public concern; and (2) the governmental employer is unable to offer a legitimate justification to restrict the speech.

Several court cases involving higher education show how the Garcetti standards limit the First Amendment rights available to student affairs professionals for work-related speech. In Vila v. Padrón (2007), for instance, a former community college vice president alleged that her employment contract was not renewed because she had opposed unethical or illegal behavior on the part of the college’s president. Among her claims, the former vice president asserted that she had objected to representations made to the institution’s governing board that an advertising contract had been competitively awarded, when, if fact, it had not. She also alleged that she had warned against improper actions taken in the purchase of a building by the college and had objected to using college funds to pay for illustrating a poetry book written by the daughter of one of the college’s trustees.

The Garcetti standards meant the court’s analysis did not include whether the former vice president was dismissed for the reasons that she claimed. Instead, the federal appeals court focused on whether the speech at issue took place as part of the vice president fulfilling her official employment duties. Determining that all the speech under consideration occurred as part of carrying out these duties, the court held that, under Garcetti, the former vice president could not look to the First Amendment as a legal basis to challenge the non-renewal of her contract, even if her allegations were true.

In another illustrative case, Savage v. Gee (2012), a university librarian, Savage, argued that his employer university violated his First Amendment rights. Savage’s claim stemmed from a dispute that arose as part of his membership on a university committee charged with selecting a common reading book for all incoming first year students. The librarian became embroiled in a controversy when he suggested several books that other individuals on the committee and members of the campus community felt were homophobic.

The controversy over Savage’s actions and his book attracted widespread attention on campus and included consideration by the faculty assembly. Several campus members indicated that Savage’s communications had made them fearful and filed complaints with the institution against him. Savage responded by filing his own harassment complaints against several individuals. Savage resigned from his position and eventually initiated a lawsuit against the university. In his suit, he alleged he was left unable to function in his job due to a lack of institutional support and continuing harassment stemming from his stances involving the book selection.

A federal appeals court held that Savage’s First Amendment claims were negated by the Garcetti standards. Savage had argued that his speech related to his participation on the book selection committee dealt with matters involving academic freedom. As such, he argued, his speech should not be subject to the Garcetti standards, even if involving Savage’s official employment duties. While noting that the Supreme Court left open the possibility of some type of academic freedom exception in Garcetti, the court held that Savage’s speech had too little of a connection with teaching or scholarship to qualify for any such type of exemption. Regardless of whether one approves of Savage’s speech or views, the decision highlights how student affairs professionals possess no First Amendment protection under the Garcetti standards for speech made while carrying out their official job duties. This was the outcome in Savage even though the speech at issue had a close relation to curricular or pedagogical matters that seemingly implicated academic freedom concerns.

These cases reviewed in this section demonstrate the strict legal standards created by the Garcetti decision. These legal rules mean that student affairs professionals at public colleges and universities are unable to claim First Amendment protection for speech undertaken to carry out their official employment duties. Additionally, employment arrangements that provide limited legal protection to student affairs professionals often accompany this lack of First Amendment protection for work-related speech, both at public and private institutions.

Employment Arrangements and Student Affairs Professionals

Some institutions employ student affairs professionals on a contract basis. This means that, absent a sufficient reason, one cannot end an individual’s employment during the contract period. However, institutions employ many student affairs professionals at both public and private institutions on an at-will employment basis. When someone is employed at-will, it means his or her college or university employer is not required to establish cause in dismissing the person and may do so at any time.

Some constraints exist on the at-will doctrine. Colleges and universities, for instance, must comply with civil rights laws protecting individuals from discrimination (Swift, 2010). Many states have also adopted public policy exceptions to the dismissal of at-will employees, such as not permitting the termination of at-will employees who refuse a request to violate the law (Muhl, 2001). Despite certain limitations a student affairs professional employed in an at-will capacity can generally be dismissed at any time and for any reason, including for issues involving work-related speech.

Student affairs professionals may also receive employment protections relevant to their work-related speech through collective bargaining agreements. These agreements may require sufficient cause before dismissing an employee. In some states, civil service protections may also apply to individuals employed at public colleges and universities. Such protections require some type of appropriate cause to terminate an individual’s employment.

As this brief overview shows, student affairs professionals may possess employment protections that provide, even if indirectly, a degree of legal protection for their work-related speech. Nevertheless, many student affairs professionals do not have the benefit of such legal safeguards for their work-related speech. This state of affairs contrasts sharply with faculty members in higher education employed in tenure-line positions. The absence of speech protections through employment arrangements for many student affairs professionals stands out even more when considered alongside the lack of First Amendment protection for work-related speech for those in public higher education.

Concluding Thoughts

Should student affairs professionals be the beneficiaries of policies and standards that help to provide some degree of legal protection for their employment-related speech? An answer to this question is beyond the scope and space of this column, but it seems an issue well worth raising. Just as some institutions are considering ways to give more voice and employment protections to non-tenure-track faculty (e.g., adjunct, clinical, and lecture faculty), perhaps the issue of employment-related speech rights for student affairs professionals also deserves attention. Colleges and universities benefit from student affairs professionals having a sense of empowerment to provide their honest views on policies and issues affecting the campus and students. As such, institutions should weigh the consequences of not having policies or standards that safeguard the work-related speech of their student affairs professionals.

Discussion Questions

  • Do student affairs professionals on your campus feel secure in being able to offer their views and opinions in carrying out their employment responsibilities? What are the reasons that they feel empowered or not in relation to their work-related speech? Why might they feel the way they do?
  • What kinds of employment standards (e.g., collective bargaining agreements or at-will employment) influence, directly or indirectly, the work-related speech rights of student affairs professionals at your institution?
  • What is your stance regarding the need or not for student affairs professionals to have some type of legal protection for their work-related speech?

References

Adler v. Board of Education, 342 U.S. 485 (1952).

Areen, J. (2009). Government as educator: A new understanding of First Amendment protection of academic freedom and governance. Georgetown Law Journal, 97(4), 945-1000.

Byrne, J.  P. (1989). Academic freedom: A “special concern of the First Amendment.” Yale Law Journal, 99(2), 251-340.

Finkin, M. W. (1983). On “institutional” academic freedom.  Texas Law Review, 61(5), 817-857.

Garcetti v. Ceballos, 547 U.S. 410 (2006).

Grutter v. Bollinger, 539 U.S. 306 (2003).

Horwitz, P. (2007). Universities as First Amendment institutions: Some easy answers and hard questions. University of California at Los Angeles Law Review, 54(6), 1497-1558.

Jorgensen, J. D., & Helms, L. B. (2008). Academic freedom, the First Amendment and competing stakeholders: The dynamics of a changing balance. The Review of Higher Education, 32(1), 1-24. doi:10.1353/rhe.0.0036

Keyishian v. Board of Regents, 385 U.S. 599 (1967).

Muhl, C. J.  (2001, January).  The employment-at-will-doctrine:  Three major exceptions.  Monthly Labor Review, 124(1), 3-10.

Rabban, D. M. (1990). Functional analysis of “individual” and “institutional” academic freedom under the First Amendment. Law and Contemporary Problems, 53(3), 227-301.

Savage v. Gee, 665 F.3d 732 (6th Cir. 2012).

Sweezey v. New Hampshire, 354 U.S. 234 (1957).

Swift, K. R.  (2010).  The public policy exception to employment at-will:  Time to retire a noble warrior?  Mercer Law Review, 61, 551-584.

Tepper, R. J., & White, C. G. (2009). Speak no evil. Academic freedom and the application of Garcetti v. Ceballos to public university faculty. Catholic University Law Review, 59(1), 125-181.

Vila v. Padrón, 484 F.3d 1334 (11th Cir. 2007).

About the Author

Neal H. Hutchens is an assistant professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky. His research focuses on law and policy issues arising in higher education.

Please e-mail inquiries to Neal H. Hutchens.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Staff Office.

Voting Legislation Impacting College Students: A System of Increased Integrity or Barriers?

Voting Legislation Impacting College Students: A System of Increased Integrity or Barriers?

Jeffrey C. Sun
University of North Dakota

By the time this column appears online, the 2012 elections will likely dominate our television advertisement space, nightly news coverage, and campus debates. Given the timing, I thought an election focus would be an appropriate topic for this issue.

College students are not apathetic when it comes to election participation: a recent report from the Center for Information & Research on Civic Learning and Engagement (“CIRCLE”) at Tufts University indicated that college students have been voting in general elections at steadily increasing rates since 2000 (CIRCLE, 2011). For instance, in 1996, approximately 70% of enrolled college students were registered voters, and, of those registered voters, slightly more than 70% voted in the general election. Let’s fast forward to 2008: in that year, similar to 1996, approximately 70% of enrolled college students had registered to vote by the 2008 election with 87% of the registered students voting in the 2008 election (CIRCLE, 2011).

Several events might have contributed to the increased participation of college students in elections. For example, in 1996 the Washington Higher Education Secretariat, an organizational body representing Chief Executive Officers of national higher education associations (including ACPA), launched the National Voter Registration Project. Since 1996, that project has led national campaigns to encourage student participation in elections (Washington Higher Education Secretariat, 2012). Not long after the launch of the National Voter Registration Project, the Higher Education Amendment of 1998, which reauthorized the Higher Education Act, required Title IV recipient institutions to make a good faith effort to distribute voter registration forms1 to each degree and certificate seeking student in attendance2. In addition, social media appeared to capture many college students’ attention about contemporary political issues and the opportunity for change through voting (Kushin & Yamamoto, 2010; Page, 2011). Further, nonprofit organizations such as Rock the Vote continued their work as developers of marketing campaigns that captured the youth’s attention and generated their interest in election activities (Rock the Vote, 2012).

Certainly, multiple groups’ actions likely paved the way for the increases in college student participation in elections for nearly the past 20 years. Indeed, many advocates of civic engagement and leadership would like to see even greater increases in college student participation rates3. Nonetheless, various pundits and politicians suggest that recent legislation in many states may create significant access barriers for college students to vote.

Potential Voting Barriers for College Students

After questions of reported voting irregularities in the 2000 election, Congress passed the Help America Vote Act of 2002 (“HAVA”). HAVA brought election administration reform by requiring more consistency among states, improving voting technology, and mandating more accurate voter registration data. Further, it mandated an identification requirement; yet, like many laws, the unintended and initially unstated consequences became more apparent to many observers with the passing of time. Following HAVA, states began considering, and in some cases actually passing, bills with strict requirements on what citizens must do in order to vote within the state. According to the Brennan Center for Justice at New York University (Weiser, & Norden, 2011, 2012 ), state legislators among 41 states have collectively introduced more than 180 bills placing further restrictions on voting since 2011. Below, I will discuss some of the legislation’s key components and explain how they present potentially significant burdens on college students.

Voter Registration

Eligibility. States generally indicate that voting eligibility and registration depends on the individual’s domicile. College students may designate their college residence as a place of domicile so long as the student does not maintain an active voter registration elsewhere.

In 1979, the U. S. Supreme Court affirmed that a residence hall address may qualify as an official place of domicile for voting purposes. In affirming a trial court’s decision, the Supreme Court ruled that a state cannot require an otherwise eligible voter to express intention to remain in the community after college graduation as a condition to using one’s college residence hall as a place of domicile (see Symm v. U.S., 1979). A state may, however, require that an individual declare that the college residence hall represent the student’s official domicile and forgo past addresses such as a parent’s home or other last reported address. As a very practical matter, this declaration change may impact a student’s scholarship if it is conditioned on the place of domicile or a county home as a qualifier for the scholarship award. In addition, some auto insurance plans may require stated domicile for coverage under a parent’s plan and may indicate that both parties must use the same address or fall within a certain location for insurance calculation purposes. College students may wish to consider these and related factors before deciding to declare place of domicile.

Registration documentation. Many states now require Proof of Citizenship, such as a birth certificate4, as well as photo identification to process voter registration. At present, the laws appear constitutional, but college students may not have the proper documentation readily accessible. According to a Brennan Center report (Gaskins, & Iyer, 2012), approximately 7% of survey respondents drawn from a random sample of 987 voting-age U.S. citizens reported that they did not have a readily accessible document demonstrating citizenship. That percentage increases when one examines data of individuals with lower income levels. In addition, 11% of respondents indicated that they did not have government-issued photo identification, which is a prerequisite to voter registration in some states. The Institute estimated that the figure equated to approximately more than 21 million people in the U.S. who fall into the category of not having a proper government-issued photo identification (Gaskins, & Iyer, 2012). Accordingly, these increased requirements may reduce the likelihood that individuals complete the process and file the registration paperwork—especially since several states require multiple weeks of registration processing and clearance before one is eligible to vote.

Registration Periods. Several states have closed the window for voter registration, including prohibiting registration on the day of an election. These limits require voters to plan significantly in-advance and ostensibly changes access to voting. Oddly enough, as technology has expedited the processing of voter registration, selected states have placed processing time as the principal justification for closing the voter registration period to an earlier date. For college students, the most significant registration barrier is preregistration limits. Some states such as North Carolina have considered ending preregistration of 17-year olds. At present, many of these states allow preregistration of 17-year olds, but that eligibility may change. The current preregistration policies permit 17-year olds to file for voter registration in their home state prior to leaving for college. If these policies are changed, a resident of North Carolina who attends school in Connecticut, may only register to vote within a prescribed number of days prior to turning 18-years old and the inter-state registration may present another obstacle for that college student in terms of obtaining and processing the voter registration card.

Third party registration campaigns. In several states, including Florida, Illinois, and Texas, state legislators passed laws placing obstacles on third party registration groups that organize voter registration drives within the state. In these states, if a student organization wanted to conduct a voter registration drive, the organization and at least one representative are typically required to register with the state. In some instances, the law mandates a listing of all individuals working in the voter registration drive and requires participants to attend a training session. Further, the laws indicate a prescribed number of days that the organization must submit collected registration cards. In at least two states, violators are subject to fines and civil actions.

These barriers are not necessarily constitutional. A case from the Eleventh Circuit of the U.S. Court of Appeals addressed such a challenge. In that case, a group affiliated with a Black fraternity participated in a voter registration drive and mailed in the registration cards in one large packet. The state rejected the cards because an official voting registrar did not collect the cards; yet, the state would have processed the cards had the group simply mailed each card separately. The federal appellate court ruled that Georgia’s rejection of the voter registration cards conflicted with provisions of the National Voting Rights Act, a federal law intended to assist citizens with the voting process (see Charles H. Wesley Education Foundation, Inc. v. Cox, 2005), thus striking the state law.

In light of these laws and the case presented above, student organizations should check their respective state laws before conducting a voter registration drive. Several states such as Michigan and Minnesota have pending bills or state constitutional referenda with similar requirements. Some states may have newly enacted laws, in which case organizations should check when the law becomes effective and follow the required steps. Students can often find the requirements outlined in each jurisdiction’s Secretary of State’s website.

Voting

Restrictions on early voting. Twelve states have entertained or passed laws restricting the timing or process required in order to participate in early voting and voting by absentee ballot. For instance, a Georgia law reduced the number of days for early voting from 45 days to less than 30 days. While college students are certainly not the only individuals impacted by the more confined time frame, this law may limit students who are voting via absentee ballot while attending college in another state or needing the extra time to accommodate academic needs. In Ohio, a federal court struck down a state law restricting a portion of the early voting period to qualified military personnel (Obama for America v. Husted, 2012). The court noted that statistical evidence demonstrated the closure of the early voting period would unduly harm everyone equal access to vote.

Voter identification. As noted earlier, voter identification presents a potential obstacle for college students. In this section, I explain some of the limits arising from voter identification requirements in greater detail.

Voter identification requirements are not by themselves unconstitutional. Among the challenges to these provisions, courts have considered the requirements’ application in relation to the 14th Amendment’s Equal Protection Clause and the adherence to the Help America Vote Act. In Crawford v. Marion County Election Board (2008), the U.S. Supreme Court ruled that a state’s interest in deterring and detecting voter fraud, participating in a nationwide effort to improve and modernize election procedures, and safeguarding voter confidence sufficiently outweighed the citizens’ challenges of the law’s reportedly unfair treatment. In Gonzalez v. Arizona (2012), the Ninth Circuit for the U.S. Court of Appeals handed down a decision indicating that voter identification requirements did not constitute a poll tax because citizens had to pay a fee to obtain proper identification. Similarly, when a group raised the issue of whether the voter identification requirement violated the Georgia constitution, the state’s highest court ruled that the policy does not violate that state’s constitution (Democratic Party of Georgia, Inc. v. Perdue, 2011). South Carolina even has a system to issue free identification cards so eligible individuals may vote, regardless if they can afford to purchase a standard identification card. Nonetheless, South Carolina and other states such as Wisconsin are also undergoing legal challenges to voter identification requirements and the arguments extend beyond questioning about poll taxes. These cases and others raise concern about the voter identification laws’ impact on certain marginalized groups. Recently, a federal court held that the Texas bill on voter registration violated the Voting Rights Act by having a retrogressive effect on the poor and racial minorities within Texas (Texas v. Holder, 2012). According to the court, the process to obtain an acceptable photo identification “imposes strict, unforgiving burdens on the poor, and racial minorities in Texas are disproportionately likely to live in poverty” (p. 33).

While not unconstitutional on its face, voter identification requirements present significant hurdles for many college students. For instance, does the college student have an active form of identification from an approved issuing agency? Does the identification contain a recognizable photo (e.g.., did the student modify hair color or other characteristics that could confuse a polling agent)? More important, does the identification state an address within the precinct area (i.e., the student’s residence hall address)?

A driver’s license is the typical form of identification, but not all college students maintain a driver’s license. A state legislator argued recently that the photo identification requirement does not present a barrier to college students because even the ACT and SAT administrations mandate photo identification cards be shown at test time (Wallsten, 2011). This state legislator’s argument is somewhat flawed for several reasons. First, he failed to recognize that many college students have never taken either the ACT or SAT. More importantly, the ACT and SAT accept school identification cards, whereas many state laws requiring photo identification to vote do not permit college identification cards as a permissible form of identifying oneself (see, e.g., South Carolina; also, Kansas, which permits college identification cards from recognized schools within the state).

Conclusion

For many reasons, we should engage college students in the election process. To begin, they have a stake in the elections as elected officials and ballot measures often impact such critical concerns such as campus safety, tuition and fees, diversity on campuses, and financial aid. In addition, by bringing awareness about the requirements and processes, our students learn first-hand the complexity of political systems couched on one end as efforts to create integrity in the election process and on the other end as barriers of access to many otherwise eligible voters. This column conveyed to readers the heightened registration and voting requirements to construct opportunities in which we actually have a voice by qualifying as voters in this general election. To do so, here are some quick steps that college staff and students should consider: 1) consult relevant state law voting requirements (especially since so many states have new ones)5, 2) proceed with steps to obtain proper documentation such as proof of citizenship and an acceptable voter identification card for registration and voting, 3) build-in enough lead time to register or cast absentee ballots, and 4) encourage family, friends, and other colleagues to vote. Finally, don’t forget Election Day is Tuesday, November 6, 2012.

Discussion Questions

  • What does your state law require with respect to voter registration and voter identification requirements? What does your state law (and states from which many of your students originate) require for absentee ballot voting?
  • How have you educated your students about the voting process to ensure they are aware of the timing required for registration? What steps might your institution take to assist students in obtaining or having the proper identification required to vote readily available?
  • What policies and processes does your institution have that present barriers to participation much like the effect of some of the state election laws? What mechanisms do you have to consider the intended and unintended consequences of these policies and processes?

References

Center for Information & Research on Civic Learning and Engagement (CIRCLE) (2011). Understanding a diverse generation: Youth civic engagement in the United States. Medford, MA: Jonathan M. Tisch College of Citizenship and Public Service at Tufts University.

Charles H. Wesley Education Foundation, Inc. v. Cox, 408 F.3d 1349 (11th Cir. 2005).

Crawford v. Marion County Election Board, 553 U.S. 181 (2008).

Democratic Party of Georgia, Inc. v. Perdue, 707 S.E.2d 67 (Ga. 2011).

Gaskins, K., & Iyer, S. (2012). The challenge of obtaining voter identification. New York, NY: Brennan Center for Justice at NYU School of Law. Retrieved from http://brennan.3cdn.net/773c569439b50452e0_kzm6bo5l6.pdf

Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012).

Help America Vote Act of 2002, 42 U.S.C. 15301 et seq. (2012).

Hesseldahl, A., MacMillan, D., & Kharif, O. (2008, Nov. 5). The vote: A victory for social media, too. Business Week. Retrieved from
http://www.businessweek.com/technology/content/nov2008/tc2008115_988160.htm.

Kushin, M. J., & Yamamoto, M. (2010). Did social media really matter?: College students’ use of online media and political decision making in the 2008 election. Mass Communication & Society, 13(5), 608-630.

Lucier, K. (2008). Voices of Influence: College students and the 2008 U.S. presidential election. The Bulletin of the Association of College Unions International, 76(5). Retrieved from http://www.acui.org/publications/bulletin/article.aspx?issue=704&id=7728

National Voter Registration Act, 42 U.S.C. § 1973gg (2012).

Obama for America v. Husted, Civ. No. 2:12 CV 0636 (S.D. Ohio Aug. 31, 2012).

Page, S. (2011, Oct. 24). Obama moves to revive ties with younger voters; Outreach aims at campuses, social media. USA Today, A2.

Rock the Vote (2012). Electionland USA. Retrieved from www.rockthevote.com

Texas v. Holder, Civ. Action No. 12-cv-128 (D.D.C. Aug. 30, 2012).

U.S. v. State of Texas, 445 F Supp. 1245 (D. Tex. 1978), aff’d Symm v. U.S., 439 U.S. 1105 (1979).

Wallsten, P. (2011, Mar. 7). State Republicans seek more limits on voters. Washington Post, A1.

Washington Higher Education Secretariat (2012). Your vote, your voice: Voter registration. Retrieved from www.yourvoteyourvoice.org

Weiser, W. R., & Norden, L. (2011). Voting law changes in 2012. New York, NY: Brennan Center for Justice at NYU School of Law. Retrieved from http://brennan.3cdn.net/92635ddafbc09e8d88_i3m6bjdeh.pdf

Weiser, W. R., & Norden, L. (2012). 2012 voting law changes: Passed and pending legislation that has the potential to suppress the vote. New York, NY: Brennan Center for Justice at NYU School of Law. Retrieved from http://brennan.3cdn.net/9ed80429d87c144de6_97m6bna11.pdf.

Notes

1. This requirement did not apply to states that do not have a voter registration requirement. At present, only North Dakota does not have such a requirement.

2. In 2008, California legislators amended the Donahoe Higher Education Act to include a similar requirement

3. Not everyone supports college students voting. Not long ago, the New Hampshire Speaker of the House William O’Brien conveyed his objections to college students’ participation in elections. He thinks the idea of college students voting is “foolish” (Wallsten, 2011). At a public event, he argued that college students lack “life experience” so they are not sophisticated enough to understand the issues or candidates.

4. While the barrier to proof of citizenship is potentially great, Kansas adopted an arguably fair requirement. Its law does not go into effect until January 2013. That latter enactment date offers advance notice, so voters can preplan and gather proper documentation before the 2013 general election.

5. Be careful, some Web sites such as the Brennan Center have state-by-state descriptions tailored to the college student population, but many of these descriptions are outdated (see http://www.brennancenter.org/content/pages/svg_state_write_ups/). Consequently, I strongly recommend that you check the Secretary of State’s election website or contact the office for more recent updates.

About the Author

Jeffrey C. Sun is an associate professor of educational leadership/higher education and affiliate associate professor of law at the University of North Dakota. He teaches and writes about legal issues pertaining to higher education.

Please e-mail inquiries to Jeffrey C. Sun.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.

Supreme Court to Revisit Issue of Race as Factor in Higher Education Admissions

Supreme Court to Revisit Issue of Race as Factor in Higher Education Admissions

Neal H. Hutchens
University of Kentucky

The permissibility of race-conscious admissions policies in higher education has once again taken legal center stage, with the U.S. Supreme Court having accepted Fisher v. University of Texas at Austin (2011) for review. In Fisher, the Supreme Court will consider arguments that a law guaranteeing acceptance to a Texas university for students graduating in the top 10% of their high school class negates the need for using race in any admissions decisions at the University of Texas at Austin. Previously, in Grutter v. Bollinger (2003), the Supreme Court upheld a race-conscious admissions program at the University of Michigan School of Law. In this case, the Court held that the law school could consider race, along with many other factors, in seeking to attain the educational benefits that come from having a diverse student body.

Grutter was greeted by supporters of affirmative action in higher education as a legal victory. But the legal standards approved in the case now face an uncertain future. Having accepted Fisher for review, the Supreme Court again appears poised to consider the extent to which a public college or university may rely on race in admissions. Grutter was decided five to four by a sharply divided Court. Changes in the Supreme Court’s membership since the Grutter case have resulted in uncertainty regarding the extent to which the legal standards announced in the decision will remain intact.

A noteworthy change to the Supreme Court is the departure of Justice Sandra Day O’Connor, author of the majority opinion in Grutter and a key swing vote in the case. Since assuming Justice O’Connor’s seat, Justice Samuel Alito has joined opinions disfavoring governmental reliance on racial classifications. Some Supreme Court observers believe enough votes now exist to overturn or substantially restrict the use of race in admissions approved of in Grutter (Carey, 2012; Liptak, 2012). A probable supporter of the university’s policies, Justice Elena Kagan, has also decided not to take part in the decision, likely because of her previous involvement with the Fisher litigation while serving as the Solicitor General of the United States. Put simply, the mix of key decision-makers on the current Supreme Court presents questions regarding future legal limitations on affirmative action.

Overview of Fisher v. University of Texas at Austin

In Fisher v. University of Texas at Austin, white, Texas residents not selected for admission to the university argue that the institution should not be able to use race as a factor in admissions decisions. The applicants contend that the university should be precluded from including race in any admissions decisions because of the success of a legislatively mandated plan, the Top Ten Percent Law, which assures Texas students graduating in the top 10% of their high school class admission into a public university in the state. The rejected applicants argue that implementation of the plan has resulted in sufficient enrollment of underrepresented student populations to negate the consideration of race by the university in admissions decisions not made under the Top Ten plan. Both a federal trial court and the U.S. Court of Appeals for the Fifth Circuit ruled in favor of the university. The courts held that the challenged admissions practices represented an appropriate consideration of race in institutional efforts to enhance student diversity in alignment with the legal framework approved of in Grutter.

The standards challenged in Fisher applied to only a limited percentage of admissions decisions by the university. As noted in the Fifth Circuit’s opinion, the overwhelming majority of slots were filled using the Top Ten plan, accounting for 81% of the overall slots awarded for the 2008 entering class and for 88% of the seats allotted to Texas residents. Accordingly, the vast majority of Texas residents admitted to the university were accepted through the Top Ten plan.

For admissions decisions for Texas residents not made using the percentage plan, race constituted one of multiple factors that could be considered in an application. For this group of applicants, the university calculated a Personal Achievement Index (PAI), which was based on three scores. Two of the scores were based on evaluation of an applicant’s essays. The third score—the personal achievement score—was given slightly greater weight than the other two scores; it was determined by holistic consideration of an applicant’s achievements, experiences, and background. As part of the personal achievement score, evaluators could consider a “special circumstances” element that could reflect “the socioeconomic status of the applicant and his or her high school, the applicant’s family status and family responsibilities, the applicant’s standardized test score compared to the average of her high school, and—beginning in 2004—the applicant’s race” (Fisher, 2011, p. 228).

In considering the admissions practices at issue, the Fifth Circuit pointed out that the university was not relying on some type of quota system, which would not pass legal scrutiny. The court explained that no single factor in admissions decisions, including race, was considered on a separate basis from other criteria or given any kind of specific numeric value. Instead, evaluators considered all factors in a holistic manner, with each application given individualized consideration. The court observed that, if constituting a factor at all in a particular admissions decision, “race ha[d] the potential to influence only a small part of the applicant’s overall admissions score” (Fisher, 2011, p. 228).

The applicants challenging the university’s admissions procedures have argued that the success of the Top Ten Percent Law provided a race-neutral alternative that negated the need for the university to consider race in any of its admissions decisions. The university has countered with studies demonstrating that reliance on the percentage plan alone failed to result in the enrollment of a critical mass of underrepresented students and left many courses with very few to no underrepresented students enrolled.

In challenging the university’s admissions practices that permitted consideration of race, the denied applicants looked to support from a post-Grutter Supreme Court case involving firefighters where the Court rejected a city’s invalidation of a test used for promotions (Ricci v. DeStafano, 2009). The Fifth Circuit responded in Fisher that the Supreme Court had not retreated from the standards announced in Grutter regarding the use of race as a permissible factor in admissions by public colleges and universities.

Grutter v. Bollinger and Permissibility of Race as Factor in Admissions

In Grutter v. Bollinger (2003), a five to four decision, the Supreme Court held that public higher education institutions are permitted to consider race as one of multiple factors in admissions in order to realize the educational benefits of diversity. The case involved an applicant to the University of Michigan School of Law who challenged the school’s admission policy, which considered race as one of many possible admissions factors. The law school’s criteria required admissions officials to provide individualized consideration to each application. While undergraduate grades and standardized test scores constituted important factors for consideration, the law school policy did not guarantee or reject particular applications solely on these standards. Instead, the admissions policy considered a number of other criteria that would contribute to an entering class’ diversity, including in relation to race and ethnicity.

Five justices in Grutter concluded that the law school’s admissions system was constitutional. In a companion case, Gratz v. Bollinger (2003), the Supreme Court invalidated an undergraduate admissions program at the University of Michigan, declaring that it did not provide individualized consideration of applicants’ files and mechanically included race as a factor in admissions.

Justice O’Connor, writing the majority opinion in Grutter, began her analysis by noting that governmental classifications relying on race are subject to strict scrutiny, a rigorous standard of legal review. Under this standard, the use of race in admissions had to be narrowly tailored to further a compelling governmental interest. The opinion stressed that all governmental classifications, even those seeking to benefit minority populations, are subject to strict scrutiny.

A majority of justices in Grutter accepted the argument that the law school’s use of race in admissions to obtain the educational benefits of diversity constituted a compelling governmental interest. In accepting this position, the Court adopted the diversity rationale advanced by Justice Lewis Powell in Bakke v. Regents of the University of California (1978) that had failed to garner the support of a majority of justices. In approving of the educational benefits of diversity as constituting a compelling governmental interest, the Court in Grutter also noted the special deference that has been shown by courts to colleges and universities in the context of educational matters.

Having accepted that the educational benefits of diversity constituted a compelling governmental interest, the Supreme Court in Grutter also held that the law school’s use of race was narrowly tailored. The opinion discussed that race comprised only one of many possible factors considered in admissions decisions in relation to assembling a diverse class. Applicants’ files also received individualized, holistic evaluation. The majority deemed it relevant as well that, while seeking to enroll a critical mass of underrepresented students in pursuit of the educational benefits of diversity, the law school did not rely on any kind of strict percentages that would constitute a quota system.

Post-Grutter School Assignment Cases

The Supreme Court revisited the issue of using race in admissions in a pair of consolidated cases decided post-Grutter that involved school assignment plans at the elementary and secondary education levels (Parents Involved in Community Schools v. Seattle School District No. 1, 2007). The cases dealt with challenges to student assignment plans voluntarily adopted by school districts in Seattle, Washington, and Louisville, Kentucky. In both cases, a majority of the court rejected the legal permissibility of the plans.

Chief Justice John Robert’s opinion for the majority in Parents Involved stated that in Grutter the Supreme Court emphasized that each student received individualized consideration. The majority in Parents Involved determined that the school assignment plans under consideration failed to give this same kind of individualized consideration. Near the conclusion of his opinion in Parents Involved announcing the Court’s judgment, Chief Justice Roberts, arguing against the permissibility of the school assignment plans, stated that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” (Parents Involved, 2009, p. 748). While his opinion noted that Grutter involved special concerns related to higher education, the Parents Involved decision indicates that a current majority of the Court may greet any race conscious programs with heavy skepticism.

Supreme Court’s Review of Fisher Leaves Grutter Standards in Doubt

The Supreme Court’s decision to review the Fisher case means that Grutter’s legal legacy may prove relatively brief. Accordingly, what can be viewed as the rather limited use of race in higher education admissions permitted in Grutter now faces an uncertain future. Fisher may mark the end point of a judicial pattern in recent decades characterized by an overall resistance to allowing race as a legally permissible factor in higher education admissions to serve social justice and equality goals.

As noted, the majority in Grutter looked approvingly to Justice Powell’s opinion in Regents of the University of California v. Bakke (1978) that advocated the educational benefits of diversity as a permissible reason to include race in admissions. A dissenting opinion in Bakke by Justice William Brennan and joined by three other justices shows a constitutional road not taken in relation to the use of race in higher education admissions. In this opinion, Justice Brennan argued for more lenient judicial review of racial classifications under certain circumstances. He argued that, rather than the highest level of judicial scrutiny (strict scrutiny), the kind of admissions program at issue in Bakke should have been subjected to intermediate scrutiny. His opinion contended that courts should distinguish between governmental racial classifications meant to benefit racial minorities and to address a legacy of racism in the United States versus classifications that sought to discriminate against racial minorities.

Justice Brennan’s argument that governmental uses of race meant to benefit minority groups should receive an intermediate level of judicial scrutiny did not prevail. In a series of cases, the Supreme Court eventually determined that all racial classifications should be subject to strict scrutiny. Furthermore, the Supreme Court made it clear that in seeking to remedy past and ongoing discrimination, a racial classification had to be aimed at redressing specific acts or instances of discrimination rather than seeking to address general societal discrimination. Accordingly, Grutter was decided in the context of previous decisions that had already greatly restricted instances when the government could use race to benefit minority groups.

Moses and Chang (2006) discuss how an emphasis on the “diversity rationale” in higher education, including in judicial decisions, has “weakened the justification for race-conscious admissions based on corrective or distributive justice” (p. 9). As they point out, while “broader justice concerns” are not completely distinct from the diversity rationale, such an “interest appears at best to be indirect” (Moses & Chang, 2006, p. 9). Moses and Chang’s concern with an overemphasis on the diversity rationale highlights how, from one perspective, the Grutter decision marked a rather modest and somewhat narrow legal approval of the use of race in public higher education admissions. Now, with the Supreme Court set to review Fisher v. University of Texas at Austin, even the continued legal permissibility of this limited use of race in public higher education admissions appears in doubt.

Discussion Questions

  • Does your institution use race-conscious admissions policies of the kind authorized in the Grutter decision? If so, what would be the impact on admissions at your college or university resulting from a Supreme Court ruling that prohibits or restricts such race-conscious policies?
  • Does your state or university have race neutral admissions policies that are intended to achieve greater diversity in admissions? What effect do these policies have on your admissions outcomes?
  • How does your college or university interpret the concept of “critical mass?” What kinds of data collection initiatives are used to evaluate your institution’s degree of success in achieving a “critical mass” of students from underrepresented populations?

References

Carey, K. (2012, March 4). Commentary: Justice and equity are on the line in ‘Fisher v. Texas.’ The Chronicle of Higher Education.

Fisher v. University of Texas at Austin, 631 F.3d 213 (5th Cir. 2011), cert. granted, 2012 WL 538328 (Feb. 21, 2012).

Gratz v. Bollinger, 539 U.S. 244 (2003).

Grutter v. Bollinger, 539 U.S. 306 (2003).

Liptak, A. (2012, February 7). Justices take up race as a factor in college entry. The New York Times. Retrieved from http://www.nytimes.com

Moses, M.S., & Chang, M.J. (2006). Toward a deeper understanding of the diversity rationale. Educational Researcher, 35(1), 6-11.

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007).

Regents of the University of California v. Bakke, 438 U.S 265 (1978).

Ricci v. DeStafano, 129 S. Ct. 2658 (2009).

About the Author

Neal H. Hutchens is an assistant professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky. His research focuses on legal issues arising in higher education.

Please e-mail inquiries to Neal H. Hutchens.

Disclaimer

The ideas expressed in this article are not necessarily those of the Developments editorial board or those of ACPA members or the ACPA Governing Board, Leadership, or International Office Staff.