U.S. Supreme Court Cases in Higher Education - Law and Higher Education
The relationship between the law and higher education institutions, as well as that between the law and those institutions’ faculties, students, administrations, and governing boards, has changed dramatically throughout the history of higher education in the United States. Values in the larger society have often been mirrored in cases concerning issues that have arisen on campuses. Since the first American institutions of higher learning were established, colleges and universities have seen the presence of the law grow on campus, as their autonomy has faced serious challenges, and the essential relationships between and among faculty members, students, administrators, and governing boards have evolved. During this time, themes involving authority and autonomy have emerged. This entry provides an overview of major higher education cases, focusing primarily, but not exclusively, on litigation from the U.S. Supreme Court, in areas that helped shape the nature of the relationship among institutions, their faculty, and students.
Governance and the Public–Private Dichotomy
Institutions of higher education traditionally governed themselves. Pursuant to the doctrine of academic abstention, the courts have been reluctant to interfere with the business of higher education and the judgments of institutional officials. However, the relationship between colleges, universities, and the courts depended in large part on whether institutions were public or private. While private institutions enjoy a fair amount of judicial deference, public institutions historically have not enjoyed that kind of autonomy.
The first case to address the right of private institutions to resist governmental interference came in 1819 with Trustees of Dartmouth College v. Woodward, a dispute that was prompted by the attempt of the State of New Hampshire to take control of Dartmouth College. The Court considered whether the state could assume control of the college even though its charter put the governing authority in the trustees. Entering a judgment in favor of the college, the Court ruled that private institutions have the right to govern themselves without state interference.
Issues involving the rights of students in higher education have emerged since the tumultuous days of the 1960s. Key student issues involve their relationships with institutional officials, due process, free speech, and affirmative action.
Questions of autonomy grew out of the relationship between institutions of higher education and their students. The first major case, albeit not one involving the U.S. Supreme Court, involved the nature of the relationship between institutions and their students. In Gott v. Berea College (1913), a local restaurant owner sued the college for prohibiting its students from patronizing eating establishments that the college did not control. The college insisted that as a private institution charged with the care of its students, officials had to take necessary measures to protect and educate their students. Agreeing, Kentucky’s highest court decided that the doctrine of in loco parentis, literally “in the place of the parents,” defined the role of college authorities over their students. The court acknowledged that college authorities could make any rule or requirement for students that parents could make for their children and that courts should not interfere or question the wisdom of those decisions. Gott established the legal doctrine that would define the institution–student relationship for at least half a century.
In 1928, an appellate court in New York furthered the status of in loco parentis in Anthony v. Syracuse University. The primary issue here involved contract law where university officials dismissed the plaintiff for little other than her not being “a typical Syracuse” girl. The plaintiff argued that she had a contract with the university that officials breached. The court recognized that under ordinary circumstances, students entered into contracts when they enrolled in universities. Even so, the court conceded that officials had wide discretion in evaluating which behaviors merited dismissals of students and that the judiciary should be slow to invalidate any such judgments. Subsequently, courts continued the pattern of judicial deference to the control that college and university officials exercised over their students.
By the 1950s, changes in American society made their way to campuses. The enactment of the G. I. Bill dramatically increased access to higher education, particularly among war veterans, while increasing the diversity in student bodies. By the 1960s, the civil rights movement and social unrest outside college campuses impacted the student– institution relationship, as more students demanded greater rights and to be treated like adults. A key case involving this shift was Dixon v. Alabama State Board of Education (1961). Although the Supreme Court chose not to hear an appeal in Dixon, it is significant for two reasons: It helped to establish the due process rights owed to public university students, and it marked the shift away from in loco parentis as a doctrinal approach to the student–institution relationship.
Due process is the constitutional principle that individuals who are accused of misconduct are owed substantive and procedural rights in judicial proceedings. In higher education, due process refers to the fairness of procedures used in misconduct hearings involving both academic and disciplinary infractions. While substantive due process addresses the substance of the law or rules on which actions are made, procedural due process mainly concerns the procedures themselves. A personal misconduct case, Dixon involved the expulsion of students and their right to be notified of and to have a hearing. After participating in a sit-in at a local lunch counter, six students were expelled from Alabama State College. The court explained that there must be a balancing of the private interest of students and the power of the government. Pointing out that attendance at public institutions of higher learning is not a constitutionally protected right, the court nonetheless found that the students had a right to remain enrolled in their public college because of the educational benefits that they gained by doing so. In addition, the court observed that the college’s power was not unlimited and could not be exercised in an arbitrary way, even if there were reasonable regulations guiding the decision. Moreover, the court rejected the application of in loco parentis as a means of judicial deference to college and university officials who purportedly acted in the best interests of their institutions. In its analysis, the court laid out basic due process standards for college and university officials in personal misconduct cases: Officials must provide notice of the charges against students and a hearing on those charges with the opportunity for the students to refute them. Noting that different cases called for different kinds of hearings, the court concluded that these basic elements satisfied the requirements of due process.
Free Speech Rights
The social unrest on and off campus that led to the demise of in loco parentis also helped to enhance student free speech rights. Following on Tinker v. Des Moines Independent School District (1969), a secondary school case wherein the justices upheld the right of students to wear black armbands to school in protest of American activity in Vietnam, the Supreme Court turned to higher education. In Healy v. James (1972), the Court upheld the free speech rights of students who wished to form a local chapter of Students for a Democratic Society, even though officials feared that the group’s presence would be disruptive. The Court posited that officials at the college could not restrict a group’s speech or right to associate simply because they thought that the group’s views were abhorrent.
Among other student free speech cases, perhaps the most notable is Clark v. Community for Creative Non-Violence (1984), in which the Supreme Court developed time, place, and manner restrictions for campus demonstrations. The Court further addressed hate speech regulations in cases such as R.A.V. v. City of St. Paul (1992) in invalidating a city ordinance designed to ban hate crimes. Relying on the Court’s reasoning in R.A.V., lower courts have invalidated campus hate speech regulations in cases including Doe v. University of Michigan (1989). In the area of free speech, courts have weighed the rights of public colleges and universities against the free speech rights of their students, reaching mixed results depending on the circumstances.
Courts continued to defer, albeit to a lesser degree, to college and university officials, especially in internal decision making. This deference changed as societal concerns over racial preferences arose on campus and questions about affirmative action arose. After sidestepping the question in DeFunis v. Odegaard (1974), when it held that the challenge of a White law student in Washington to an affirmative policy was moot because he was in his final year of study, the Supreme Court agreed to hear its first appeal on the merits of such a case in Regents of the University of California v. Bakke (1978). The plaintiff sued because he had been denied admission to a public medical school that evaluated disadvantaged students through a program using a separate admissions process. The university argued this program was necessary for a variety of reasons, including increasing the number of doctors in underserved communities and diversifying the student body. While the Supreme Court agreed that these justifications were compelling interests, it invalidated the admissions program as unconstitutional. Insofar as there were different majorities on various sections of the plurality opinion, meaning that the case did have the requisite five justices who agreed to the same point of law to render it binding precedent, the case left the status of affirmative action open for further litigation.
As legal questions surrounding affirmative action remained open for decades, later cases addressed the issue, including disputes over financial aid. For example, in Podberesky v. Kirwan (1994), the Fourth Circuit invalidated a race-based scholarship program as unconstitutional, because university officials failed to prove that they were trying to overcome the present effects of past discrimination or that the underlying plan was sufficiently narrowly tailored to remedy minority underrepresentation on campus. The Supreme Court refused to hear an appeal.
The two latest affirmative action cases, both of which arose at the University of Michigan, are Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003). In Grutter, the Supreme Court upheld the law school’s admissions policy that afforded additional consideration to race on the ground that seeking to diversify the student body was a compelling state interest. Conversely, in Gratz, the Court struck down the undergraduate admissions system as unconstitutional, because it relied on a point-based system that resembled a quota system of the type that the Court invalidated in Bakke.
Themes involving faculty issues, authority, and autonomy have also occupied a great deal of judicial decision making. Of particular importance are employment concerns, especially tenure. Tenure disputes typically involved interests governed by the doctrine of constitutional due process, especially procedural due process. As with issues involving students, procedural due process involves fairness in the process. For employment actions, due process requires a fair hearing when liberty or property interests protected by the Constitution are at stake.
Tenure and Due Process
The two leading Supreme Court cases involving faculty rights to tenure and due process are Board of Regents of State Colleges v. Roth (1972) and Perry v. Sindermann (1972). In Roth, a faculty member sued after his one-year teaching contract was not renewed, alleging both that he was not rehired because he was critical of the administration and that the failure of officials to give him notice and a hearing violated his rights to procedural due process. The Supreme Court indicated that this failure did not violate the faculty member’s constitutional rights, because insofar as he lacked a property interest in the one-year contract or in state rules and regulations, he had no reasonable expectation of continued employment on which to expect notice and a hearing. In Perry, the Court ruled in favor of a faculty member under a different set of circumstances surrounding his procedural due process claims. Even though the plaintiff was informed that his contract was not going to be renewed and that he was not to be given a hearing, unlike the plaintiff in Roth, he had been employed through a series of one-year contracts. Therefore, the Court was convinced that the faculty member could raise the question of a property interest in continued employment. In other words, the Court was satisfied that the facts could reasonably have led the plaintiff to believe that he was entitled to continued employment under the terms of his contract, the college’s Faculty Guide, and state agency rules.
Academic Freedom and Free Speech
Related to the employment issue of tenure is academic freedom and related concerns over free speech. Although there are many definitions of academic freedom, the doctrine protects faculty rights in research and the classroom. Academic freedom initially protected faculty members against outside political interference, but today it protects faculty in broader contexts. In Sweezy v. New Hampshire (1957), the Supreme Court acknowledged the importance of academic freedom when an individual who spoke at a state university successfully challenged his contempt conviction for refusing to divulge his knowledge of political parties and their members. Subsequently, in Keyishian v. Board of Regents of the University of the State of New York (1967), the Court invalidated a state requirement that forced faculty members to sign certificates stating that they were not communists or members of subversive organizations, as this would have infringed on their right to academic freedom. In Pickering v. Board of Education (1968), a K–12 case, the Court addressed the issue of free speech in public debate. Establishing a balancing test, the Court declared that school board officials could not limit the teacher’s free speech in public debate. The Court followed the Pickering test in Connick v. Myers (1983), in asserting that a speech by a public employee, an assistant district attorney, was unprotected, because it was not on a matter of public concern.
Over the years, academic freedom arguments have been used in tenure cases as well. Most recently, in Garcetti v. Ceballos (2006), another noneducation case, the Court maintained that because public employees, here another assistant district attorney, are not addressing matters of public concern when they speak in furtherance of their job responsibilities, their speech is unprotected.
As to collective bargaining, the Supreme Court has handed down two noteworthy judgments. In National Labor Relations Board v. Yeshiva University (1980), the Court determined that because faculty members in a private, religiously affiliated university performed some duties that were considered management in nature, they did not have the right to organize and form unions in order to engage in collective bargaining. In Lehnert v. Ferris Faculty Association (1991), the Court addressed limits on the ability of a union to collect fair share fees from nonmembers for the costs associated with obtaining their benefits in collective bargaining. The Court was of the opinion that while unions may charge nonmembers and dissenting employees for activities that are clearly germane to collective bargaining, are justified by the government’s vital policy interest in labor peace and avoiding freeloaders, and do not burden the First Amendment issue inherent in public sector agency shops, they may not compel nonmember employees to support political lobbying efforts as a condition of public employment.
Issues of autonomy and authority have been played out on campus and in court for much of the history of American higher education. College and university boards and officials have exercised their authority as students and faculty have pushed for rights, with courts responding by applying constitutional principles to traditional areas of judicial deference. Constitutional and social issues facing courts in the broader society have appeared on campus as well. No doubt, new areas of judicial concern will arise as the nature of college and university life—for institutions, students, and faculty—changes in the future.
Catherine L. Matthews
See also Disciplinary Sanctions and Due Process Rights; Due Process, Substantive and Procedural; free speech and expression rights of students
Anthony v. Syracuse University, 231 N.Y.S. 435 (N.Y. App. Div. 1928).
Board of Regents v. Roth, 408 U.S. 564 (1972).
Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
Connick v. Myers, 461 U.S. 138 (1983).
DeFunis v. Odegaard, 416 U.S. 312 (1974), on remand, 514 P.2d 438 (Wash. 1974).
Dixon v. Alabama State Board of Education, F.2d 150 (1961), cert. denied, 368 U.S. 930 (1961).
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
Garcetti v. Ceballos, 547 U.S. 410 (2006).
Gott v. Berea College, 161 S.W. 204 (Ky. 1913).
Gratz v. Bollinger, 539 U.S. 244 (2003).
Grutter v. Bollinger, 539 U.S. 306 (2003).
Healy v. James, 408 U.S. 169 (1972).
Keyishian v. Board of Regents of the University of the State of New York, 385 U.S. 589 (1967).
Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).
National Labor Relations Board v. Yeshiva University, 444 U.S. 672 (1980).
Perry v. Sindermann, 408 U.S. 593 (1972).
Pickering v. Board of Education, 391 U.S. 563 (1968).
Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), amended on denial of rehearing, 46 F.3d 5 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995).
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Sweezy v. New Hampshire, 354 U.S. 234 (1957).
Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).
Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819).