Through a Glass, Darkly:

The Impact of Federal Regulations on U.S. Higher Education

Culture, Diversity and Leadership

Mary E. Kennard Vice President and General Counsel

American University

Middle States Commission on Higher Education Annual Conference December 7, 2016

Philadelphia, PA

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Introduction

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“For now we see through a glass, darkly; but then face to face: now I know in part; but then shall I know even as also I am known.” 1 Corinthians 13:12 King James Version

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Title IX

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Archery Badminton Basketball Boxing Canoe/Kayak

Cycling Diving Equestrian Fencing Field Hockey

Golf Gymnastics Judo Modern Pentathlon Rowing

Rugby Sailing Shooting Soccer Swimming

Synchro Swimming Table Tennis Taekwondo Tennis Track and Field

Triathlon Volleyball Water Polo Weightlifting Wrestling

2016 U.S. Olympic Team

At the Rio 2016 Olympic Games the U.S. Olympic Team was comprised of 558 athletes:

264 men and 294 women

52.6% in 30 sports

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At the 1992 Summer Olympics in Barcelona, Spain, the US had 545 competitors.

355 men and 190 women 34.8%

in 28 sports

At the 1972 Summer Olympics in Munich, West Germany, the US had 400 competitors.

316 men and 84 women 21%

in 21 sports

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AMY COHEN v. BROWN UNIVERSITY 991 F.2d 888, 1993

Title IX of the Education Amendments of 1972: Prohibits sex discrimination against any participant in an educational program or activity that receives federal funding.

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TITLE IX Purpose: The Act is intended to eliminate sex discrimination

in education.

• Title IX applies to ALL programs, not just those receiving direct federal

aid. • Gender cannot be the basis for different treatment, benefits or

punishments. • This includes classes, health insurance, athletic facilities, and

admissions standards.

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ACCESS to EDUCATION • May 18, 1896 PLESSY v. FERGUSON (Louisiana)

• Jan 15, 1936 MURRAY v. PEARSON (U of Maryland) • June 5, 1950 SWEATT v. PAINTER (U of Texas) • May 17, 1954 BROWN v. BOARD OF EDUCATION OF TOPEKA •

July 2, 1964 Civil Rights Act of 1964 • Sept 24 1965 Executive Order 11246 • • June 28, 1978 UNIVERSITY OF CALIFORNIA v. BAKKE (U of California) • Jan 31, 1992 PODBERESKY v. KIRWAN (U of Maryland) • Mar 18, 1996 HOPWOOD v. STATE OF TEXAS (U of Texas) • • Aug 17, 1998 GRUTTER v. …UNIVERSITY OF MICH LAW SCHOOL (U of Michigan) • Dec 13, 2000 GRATZ v. …UNIVERSITY OF MICHIGAN (U of Michigan) • Aug 17, 2013 FISHER v. U of TEXAS at AUSTIN (U of Texas) • June 23, 2016 FISHER v. U of TEXAS at AUSTIN (Fisher II) (U of Texas)

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PLESSY v. FERGUSON May 18, 1896 (Louisiana)

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MURRAY v. PEARSON Jan 15, 1936 (U of Maryland)

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Marshall and his mentor Dean Charles Hamilton Houston at Howard University School of Law

SWEATT v. PAINTER June 5, 1950 (U of Texas)

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George McLaurin segregated at the University of Oklahoma 1948

Thurgood Marshall, Esq. in front of the US Supreme Court

BROWN v. BOARD OF EDUCATION OF TOPEKA May 17, 1954

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"If we cannot end now our differences, at least we can help make the world safe for diversity. For, in the final analysis, our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's future. And we are all mortal.“ Commencement Address at American University, June 10 1963 President John F. Kennedy

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Civil Rights Act of 1964 July 2, 1964

An act to enforce the constitutional right to vote, to confer jurisdiction upon the district courts of the United States of America to provide injunctive relief against discrimination in public accommodations, to authorize the Attorney General to institute suits to protect constitutional rights in public facilities and public education, to extend the Commission on Civil Rights, to prevent discrimination in federally assisted programs, to establish a Commission on Equal Employment Opportunity, and for other purposes.

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Lyndon Johnson’s Great Society Legislation 1964 Civil Rights Act of 1964 Economic Opportunity Act Tax Reduction Act Urban Mass Transportation Act Wilderness Preservation Act

1965 Affirmative Action established by Executive Order Air Quality Act created auto emission standards Elementary and Secondary School Act - $1 billion for schools, libraries and textbooks Higher Education Act - increased support to colleges and universities 23

1965 Immigration laws (revised) Medicare Medicaid Omnibus Housing Act - $7.5 billion for low-income housing and aid Voting Rights Act Water Quality Act Established

US Department of Housing and Urban Development National Foundation for the Arts and Humanities National Endowment for the Arts National Endowment for the Humanities

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1966 Minimum Wage Act - raised and coverage extended Highway Safety Act National Traffic and Motor Vehicle Safety Act Established

US Department of Transportation Model Cities Program to rehabilitate urban slums Public Broadcasting System

1968 Truth-in-Lending Act

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Executive Order 11246 Sept 24, 1965

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UNIVERSITY OF CALIFORNIA v. BAKKE

June 28, 1978

PODBERESKY v. KIRWAN

January 31, 1992 (University of Maryland)

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HOPWOOD v. STATE OF TEXAS Mar 18, 1996 (U of Texas)

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GRUTTER v. …UNIVERSITY OF MICHIGAN LAW SCHOOL

Aug 17, 1998

GRATZ v. …UNIVERSITY OF MICHIGAN Dec 13, 2000

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FISHER v. U of TEXAS at AUSTIN Aug 17, 2009 and 2016 (U of Texas)

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Speech The First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

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TINKER v. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT.

February 24, 1969

The US Supreme Court's 7–2 decision held that the First Amendment applied to public schools, and that administrators would have to demonstrate constitutionally valid reasons for any specific regulation of speech in the classroom. Time Place and Manner Restrictions: The First Amendment permits protesters to take such action, but not whenever they choose. The Supreme Court has held on more than one occasion that no one may "insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech". COX v. LOUISANA, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 [1965]

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Symbolic Speech: Under the First Amendment, symbolic expression often takes the form of political protest.

Flag burning is an example of symbolic speech that the Supreme Court found to be protected by the Free Speech Clause.

TEXAS v. JOHNSON, 491 U.S. 397, 1989

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Immigration

Immigration and Nationality Act of 1952 (as amended) (employment) Immigration and Nationality Act of 1952 (as amended)(students)

Sanctuary Cities Defined as: “A city that has adopted a policy of protecting undocumented immigrants by not prosecuting them solely for violating federal immigration laws, and usually forbids police from inquiring about a person's immigration status.”

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Dream Act The DREAM Act:

(acronym for Development, Relief, and Education for Alien Minors) • A legislative proposal for a multi-phase process for undocumented

immigrants in the United States that would first grant conditional residency and upon meeting further qualifications, permanent residency.

• The bill was first introduced in the US Senate on August 1, 2001,S. 1291 by Dick Durbin (D – Illinois) and Orrin Hatch (R-Utah), and has since been reintroduced several times but has failed to pass.

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Campus Security Laws Affecting Students

• Campus Security Act of 1990 • The Campus Sexual Assault Victim Bill of Rights • Campus Sex Crimes Prevention Act • The Drug-Free Schools and Communities Act Amendments of 1989 • Miscellaneous Laws Affecting Students • The Family Educational Rights and Privacy Act of 1974 (FERPA) (“Buckley Amendment”) • The Student Right to Know Law • Voter Registration Provision in Higher Education Amendments of 1998 • Campus Security Act of 1990 • Campus Sexual Assault Victim Bill of Rights • Campus Sex Crimes Prevention Act

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Employment Federal workplace laws covered by rule:

• Fair Labor Standards Act • Occupational Safety and Health Act (and state law equivalents) • Migrant and Seasonal Agricultural Worker Protection Act • National Labor Relations Act • Family and Medical Leave Act • Davis-Bacon Act • Service Contract Act • Title VII of the Civil Rights Act • Americans with Disabilities Act • Age Discrimination in Employment Act • Executive Order 11246 (affirmative action and equal employment opportunity) • Vietnam Era Veterans’ Readjustment Assistance Act • Section 503 of the Rehabilitation Act • Executive Order 13658 (federal contractor minimum wage)

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Conclusion

38 © Mary Kennard 2016

WWII

Resources:

Office of General Counsel of The Catholic University of America http://counsel.cua.edu/default.cfm

National Association of College and University Attorneys

http://NACUA.org

Kent M. Weeks, College Legal Information, Inc., http://collegelegal.com/legal-manuals

Acknowledgements:

The Law Clerks of the Office of General Counsel of American University

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Questions???

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