1 / 19

Campus Diversity: A Legal Update

Anti-Harassment Polices and Speech. Example 1: all forms of sexual harassment are prohibited, including ... expressive, visual, or physical conduct of a sexual or gender-motivated nature, when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work, edu

grace
Download Presentation

Campus Diversity: A Legal Update

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript


    1. Campus Diversity: A Legal Update Gerard D. St. Ours Associate General Counsel The Johns Hopkins University October 29, 2008

    2. Anti-Harassment Polices and Speech Example 1: “all forms of sexual harassment are prohibited, including ... expressive, visual, or physical conduct of a sexual or gender-motivated nature, when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.”

    3. Anti-Harassment Polices and Speech Example 2: “For purposes of this policy, harassment is defined as: (a) any type of behavior which is based on gender, . . . race, . . . national origin, . . . sexual orientation . . . , that (b) is so severe or pervasive that it interferes with an individual’s work or academic performance or creates an intimidating, hostile or offensive working or academic environment.”

    4. DeJohn v. Temple University First Amendment challenge to Temple’s sexual harassment policy DeJohn, a grad student in the Military History department, claimed the policy was facially overbroad because it inhibited his free expression in class concerning women in combat and women in the military Court agrees with DeJohn and grants injunctive relief

    5. The Overbreadth Doctrine and Temple’s Policy A regulation of speech must be struck down on if on its face it covers expression that is protected by the Constitution - - that is, it must be narrowly drawn so as not to reach protected speech According to the Court, the Temple policy’s focus on the speaker’s motivation, coupled with use of “hostile,” “offensive,” and “gender-motivated” is on its face “sufficiently broad and subjective” as to conceivable cover any “gender-motivated” speech, the “content of which offends someone.”

    6. Where is the severity and pervasiveness? Answer: it is not there, and that, in the eyes of the court, made the Temple policy fatally flawed: “Absent any requirement akin to a showing of severity or pervasiveness - - that is, a requirement that the conduct objectively and subjectively creates a hostile environment or substantially interferes with an individual’s work - - the policy provides no shelter for core protected speech.”

    7. Can’t a university prevent harassment before it happens? Well, of course, but the institution’s policy should be qualified by the “severe and pervasive” standard Private (JHU) vs. Public (Temple) Conduct short of legal harassment? Training Reprimand? Context matters: workplace, classroom, time, place and manner

    8. Other cases College Republicans at San Francisco University v. Reed On campus Anti-terrorism rally included visual displays depicting Hamas and Hezbollah flags on butcher paper; flags had the word “Allah” in Arabic script; at one point, students put the paper flags on the ground and stepped on them; heated argument ensued Student code: “Students are expected to be good citizens and to engage in responsible behaviors that reflect well upon their university, to be civil to one another and to others in the campus community . . .”

    9. Other cases Student complaint: trekking over “Allah” violated student code; incitement to violence; created a hostile environment; incivil USF hearing panel dismissed the charges College Reuplicans still brought suit Court does not strike down code provisions that are tied to threats/endangerment of health/safety However, Court enjoins USF against enforcement of the civility provision. Cannot prohibit speech merely because it is offensive University context “core political expression”: Expressive conduct provoked intense debate and was disrespectful and offensive to many; but “it was these very characteristics that were critical to its effectiveness.”

    10. Other cases Roberts v. Haragan (Tex. Tech Law school case) Student wanted to give speech and pass out literature expressing his religious and political views that “homosexuality is a sinful, immoral and unhealthy lifestyle.” Court strikes down speech code and “prior permission” requirements because they were not narrowly tailored and were overbroad School granted permission, but student sued anyway - - Court considered various aspects of school policy regarding forum, prior permission, etc.

    11. Policy Language A. Conduct that disrupts or interferes with the orderly operation of teaching and research, or with other lawful or authorized activities. B. Conduct that causes, or can be reasonably expected to cause, or threatens physical harm to a person. C. Physical or verbal threats against or intimidation of any person which results in limiting her/his full access to all aspects of life at the university. D. Conduct or a pattern of conduct in which a person approaches or pursues another person with intent to place the person in fear of physical harm or with intent to harass or to intimidate the person. E. Conduct that violates the university’s hazing policy, or other conduct or a pattern of conduct that harasses a person or group.

    12. A Few More Cases Instructor’s posting of cartoons on office door indicating college “fired the handicapped” and depicting administrators as members of the KKK was defamatory and not protected speech. McBearty v. Ky Community and Tech. College Sys. Employee’s invitation to student to pose for swim suit calendar was not sexual harassment and did not present grounds for termination. Va. Tech v. Queensberry Elderly campus resident’s pattern of asking female students out and sending cards and gifts does not constitute sexual harassment; subjective response of students that this was SH fell short of “reasonable women” standard; conduct was “annoying and bothersome” but not SH. Godfrey v. Princeton Theological Seminary

    13. DOE Letter on Use of Race in Admissions August 28, 2008 DOE Letter: OCR lists parameters on use of race in admissions: Use of race must be essential to an institution’s mission and stated goals;   The diversity sought by the postsecondary institution must be broader than mere racial diversity;   Quotas are impermissible;   Providing individualized consideration is paramount and there must be no undue burden on other-race applicants;   Before using race, there must be serious good faith consideration of workable race-neutral alternatives; and   Periodic reviews are necessary and the use of race must have a logical end point.

    14. Review: Constitutional and Statutory Limitations Equal Protection Clause provides that "no State shall… deny to any person within its jurisdiction the equal protection of the laws." Title VII Prohibits discrimination in employment on the basis of race, gender, religion and national orgin Title VI Prohibits discrimination in any program that receives federal funds

    15. Strict Scrutiny and Narrow Tailoring “It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny. . . . ‘[R]acical classifications are simply too perniciious to permit any but the most exact connection between justification and classification.’” Parents Involved in Community Schools v. Seattle School District No. 1, 127 S.Ct. 2738, 2751-52 (2007). Remedial justification (remedying the effects of past intentional discrimination) Diversity Questions to ask on narrow tailoring: Is the consideration of race necessary? Have race-neutral programs or strategies been considered or tried? How flexible is the consideration of race? Is race but one factor among many, or does it operate to insulate some candidates from consideration from others? What is the impact of the race-conscious practice on otherwise qualified non-beneficiaries? Are those non-qualifying candidates disadvantaged by the race-conscious practice? What is the process for review and refinement of the race-conscious program, and is there an end in site? Quoting Arthur Coleman and Scott Palmer, Diversity in Higher Education: A Strategic Planning and Policy Manual Regarding Federal Law in Admissions, Financial Aid and Outreach, p. 16 (2nd Ed., 2004, Published by the College Board). Questions to ask on narrow tailoring: Is the consideration of race necessary? Have race-neutral programs or strategies been considered or tried? How flexible is the consideration of race? Is race but one factor among many, or does it operate to insulate some candidates from consideration from others? What is the impact of the race-conscious practice on otherwise qualified non-beneficiaries? Are those non-qualifying candidates disadvantaged by the race-conscious practice? What is the process for review and refinement of the race-conscious program, and is there an end in site? Quoting Arthur Coleman and Scott Palmer, Diversity in Higher Education: A Strategic Planning and Policy Manual Regarding Federal Law in Admissions, Financial Aid and Outreach, p. 16 (2nd Ed., 2004, Published by the College Board).

    16. Brief Review of Grutter Supreme Court confirms that there is a compelling interest in higher education to expose students to “widely diverse people, culture, ideas and viewpoints,” and this interest permits universities to adopt narrowly tailored race conscious programs in admissions.

    17. Student Admissions Programs must be designed to ensure individualized review of applicants and their diversity attributes, which should include: Non-mechanical, full-file review of applicants; Flexible review entailing consideration of “all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration, although not necessarily according them the same weight;” and Protection against burdens on individuals who do not benefit from the race-conscious policies.

    18. Fisher v. Texas Federal court denies request to require UT to re-evaluate applicants for admission without considering race; cites Grutter For students who are not admitted under the Texas “Top 10%” law, UT applies a multi-factor scoring process; students are scored on two essays, and based on subjective assessment of several factors: “demonstrated leadership qualities, extracurricular activities, honors and awards, work experience, community service, and special personal circumstances.” Sub-factors under "special circumstances:" “socioeconomic status of the family and the school, a single-parent home, whether languages other than English are spoken at home, family responsibilities, and race.” Readers are trained to review applications under consistent guidelines/methodology.

    19. Q & A/Discussion

More Related