October 3, 2012
Fisher v. University of Texas at Austin: A Moment of Uncertainty in the Evolution of Affirmative Action
For more than thirty years, the Supreme Court has permitted colleges and universities to take race into account when making admission decisions. Starting with its 1978 decision in Regents of the University of California v. Bakke and culminating in the celebrated University of Michigan Law School decision—Grutter v. Bollinger—just nine years ago, the Supreme Court laid down ground rules that are today widely understood, legally coherent, and relatively simple to apply:
When admitting students, an institution may take race into account so long as the declared objective is to foster racial diversity and so long as the institution eschews quotas, avoids cutoff scores or academic indices differentiated on the basis of race, does not utilize minority “subcommittees” or other processes that batch applicants on the basis of race, and reexamines the need for affirmative action at regular intervals.
In just a few months the Supreme Court will decide a case that could substantially alter the higher education community’s shared understanding of affirmative action law. On its face, Fisher v. University of Texas at Austin differs hardly at all from the 2003 Grutter case. Like the Michigan case, Fisher is a challenge by an unsuccessful white applicant for admission to a flagship state university. Like the plaintiff in Grutter, Abigail Fisher alleges that her constitutional rights were violated when minority applicants with lower grade-point averages and standardized test scores than hers were offered admission and she was not.
In 2011 a federal appeals court rejected Ms. Fisher’s challenge and upheld the Texas affirmative action program, holding that the program complied with standards enunciated in controlling Supreme Court precedent: “it would be difficult,” the lower courted noted, “for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter.”
Although the law of affirmative action has not changed since Grutter was decided in 2003, the composition of the Supreme Court has. Justice Sandra Day O’Connor, author of the Court’s decision in Grutter, retired in 2006. Her replacement, Samuel Alito, is an avowed foe of affirmative action. Three other Justices—Antonin Scalia, Clarence Thomas, and Anthony Kennedy—dissented in Grutter and are regarded as firm votes against affirmative action. Chief Justice John Roberts was not on the Court in 2003, but he has forcefully expressed his aversion to affirmative action in other contexts.
Fisher will be argued before the Supreme Court on October 10, and a decision is expected later this academic year. There are, it appears, five likely votes against affirmative action in Fisher. Under one scenario, that five-vote bloc of Justices could rule that race can never be used as an admission criterion, which would effectively end the nation’s three-decade commitment to affirmative action programs that use race as a factor in making admission decisions. Were that draconian approach to be unpalatable to either Chief Justice Roberts or Justice Kennedy, then the Court might take an incremental approach by formulating new, stricter rules for the implementation of affirmative action programs—rules that might, for example, prohibit institutions from adopting such programs without first trying (and failing) to achieve racial diversity through so-called “race-neutral” means (such as admitting a fixed percentage of every in-state high school’s graduating class in order to attract critical masses of minority students from high schools serving predominantly minority populations). Most sociologists and legal commentators believe that use of race-neutral factors substantially dilute the impact of affirmative action programs and will lead to the admission of significantly fewer students of color at American colleges and universities.
More than seventy friend-of-the-court briefs—an unusually large number—were filed in Fisher urging the Court to uphold Texas’s affirmative action plan, including briefs from research universities, elite liberal arts colleges, state university systems and campuses, community colleges, civil rights groups, faculty members, and students. (You can see a complete list of all friend-of-the-court briefs and download copies of those briefs at http://www.americanbar.org/publications/preview_home/11-345.html.) Only seventeen briefs were filed in support of Abigail Fisher’s challenge to the affirmative action program in Texas, and it is worth observing that not a single one of those briefs was submitted by a college or university—all were prepared by advocacy organizations or conservative scholars opposed to affirmative action.
On August 13, the University of Delaware joined other major public research universities in filing a friend-of-the-court brief supporting the University of Texas and affirming our longstanding commitment to diversity and inclusion. Copies of the University of Delaware’s brief are available here. We were joined on the brief by the University of Michigan, Pennsylvania State University, the Ohio State University, the University of Illinois, and many of the nation’s other leading state flagship universities. In our brief, we stated:
Admitting diverse student bodies that have a strong connection to the communities [we] serve remains essential to achieving [our] dual objectives of promoting academic excellence and leadership in students. Current research continues to show that student bodies diverse in a multitude of ways lead to improved learning outcomes for all students and benefit the entire educational community. For these and other reasons, [we] all share a commitment to inclusiveness and public service as part of [our] various missions.
I hope that the Supreme Court will reaffirm its endorsement of affirmative action in Grutter and will uphold the admissions program at the University of Texas. At the same time, I share the fear of many Supreme Court observers that the Court did not accept Fisher for review merely to reiterate legal standards enunciated with clarity nine years ago. It is more likely that the anti-affirmative-action majority will revise or reverse three decades’ worth of well-established affirmative action jurisprudence, and we must be prepared for the possibility that that moment will come sooner rather than later.
Larry White
August 27, 2012
Rules of the Road Involving Partisan Political Activities on Campus
Election season is upon us, and it is worth remembering that the University of Delaware’s status as a non-profit, tax-exempt organization imposes legal restrictions on the partisan political activities in which the University is allowed to engage.
The general rule is stated in regulations promulgated by the Internal Revenue Service under Section 501(c)(3) of the Internal Revenue Code. As a tax-exempt organization, the University is prohibited from participating or intervening in any political campaign on behalf of or in opposition to any candidate for public office. Political intervention, in this context, means not only obvious kinds of campaign involvement—endorsing candidates, making financial contributions, using University computers or buildings for partisan purposes—but also publishing or distributing written or oral statements on behalf of or in opposition to a particular candidate.
There are no exceptions to this prohibition. Even an insubstantial violation may lead to monetary fines and exposes the University to the theoretical possibility of revocation of its tax-exempt status.
The limitations imposed by federal tax law apply to partisan political activities undertaken by the University or in the University’s name. There is a big difference, legally and practically, between what the University may do in a partisan context and what individual members of the University community can do in their capacities as citizens, voters, and members of political organizations. The University is dedicated to the free expression of ideas. It encourages students, faculty, and other employees, in their individual capacities, to participate fully in the political process during campaigns by candidates for public office as long as they do not--either overtly or implicitly--involve the University.
In order to permit robust political discourse while at the same time ensuring that the University honors the restrictions imposed upon it as a tax-exempt organization, the General Counsel’s Office has prepared these guidelines on partisan political activities undertaken by individual members of the University community. The guidelines are based on interpretations of the law issued by the Internal Revenue Service over the years. For those who are interested in primary source material, the most helpful guidance is Revenue Ruling 2007-41, issued by the IRS on June 18, 2007, and available online at http://www.irs.gov/pub/irs-drop/rr-07-41.pdf.
University faculty members, staff, and students should observe the following commonsense rules when participating in national, state, or local partisan political campaign activities:
(1) Individuals’ political activities. It is absolutely permissible for individual members of the University community to endorse (or oppose) a candidate for political office, or to take a position on an issue for the purpose of assisting or opposing a candidate. When doing so, however, individuals should avoid creating the impression that they are speaking for the University or on the University’s behalf. This is particularly important for those who in their official capacities frequently or publicly speak for the University. In general terms, this means that individuals may take part in partisan political activities freely on their own time, but they must not do so on University time, using University resources, or in such a fashion that the University incurs any expenses.
The University’s name or insignia cannot be used on stationery or other documents intended for political purposes.
Political campaign donations or other political contributions cannot be solicited in the name of the University of Delaware. Individuals may not—and should not be asked to—perform tasks related to partisan political activities during working hours.
The following may not under any circumstances be used for political campaign purposes:
a. The University's bulk-mailing privilege;
b. University mailing lists, including the addresses and e-mail addresses of departmental offices or the offices of faculty or other employees;
c. University-provided office supplies, computers, telephones, fax machines, copiers, and the like;
d. The University's sales tax exemption for purchases of goods and services.
Any communication disseminated through the University’s e-mail system or using University computers that could be construed as relating to political activity must include a clear statement that such communication represents the personal position of the author.
(2) Use of University buildings and facilities. University-related organizations composed solely of members of the University community may sponsor or utilize available University building space to engage in partisan political campaign activities within the University community, but only if the sponsoring organization (a) pays for the costs of such activities (typically, telephones, duplicating, electricity, etc.) and (b) pays full rental fees for the use of such facilities that they would otherwise be charged.
A disclaimer should be made at the beginning of any on-campus political event (and in any printed materials or advertising) that the University does not support or oppose candidates for political office, that the opinions expressed are not those of the University, and that a University-related organization has sponsored the event. University or college banners may not be displayed; University-related group banners may be. All plans, publicity, and other information relating to such activities must be approved in advance by the University’s Facilities Department.
Admission to speaker appearances must be open to the University community and, if the sponsoring organization chooses (in compliance with other applicable University policies), the general public, without regard to the attendees’ party affiliations or support of any particular candidate. Admission may not be controlled by speakers, campaign staff, or any other person or organization not affiliated with the University.
A candidate’s appearance or presentation cannot be used to collect campaign or other political contributions or commitments from members of the audience. The University may allow representatives of the news media to be present during a speaker's appearance, but only if access is permitted in a politically neutral manner. Media coverage may not be directed or controlled by speakers, campaign staff, or any other person or organization not affiliated with the University.
Organizations composed of non-University members, participants or employees, in whole or in part, are ineligible for use of University space to engage in partisan political campaign activities.
(3) Nonpartisan political activities. Nonpartisan political activities such as properly organized voter registration activities, voter education programs, and candidate debates may be permissible if they do not evidence a preference for or opposition to a political party or to candidates who have taken a particular position. In order to ensure that all legal and University requirements are followed, advance approval for these events must be obtained from (and all materials must be reviewed by) the Executive Vice President’s Office, which will, if necessary, provide further guidance to the organizer.
To repeat: these policies are not intended to infringe in any way the right of individual members of our community to support a particular candidate or participate in a political campaign. All of us are entirely free to become involved in the election process as we choose, so long as we do not—either directly or by implication—suggest that the University is engaging in prohibited political activity.
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As Election Day approaches, questions will inevitably arise about the extent to which University community members can engage in partisan political activities. Please feel free to pose any questions you may have to the lawyers in the General Counsel’s Office, all of whom can be reached at (302) 831-7366 or generalcounsel@udel.edu.
July 13, 2012
Delaware’s Mandatory Child Abuse Reporting Law and What to Do If You Witness Child Sexual Abuse on CampusOn November 15, 2011, shortly after the release of the Pennsylvania grand jury report on child sexual abuse at Pennsylvania State University, I sent an email message to all faculty and staff at the University of Delaware reminding them of University’s mandatory procedure for reporting abuse to state authorities.
Now, with new media coverage being generated by yesterday’s release of Louis Freeh’s report to the Penn State Board of Trustees, it is a good moment to be reminded again of the legal obligation we all have to report child sexual abuse.
Delaware has a comprehensive law – the Delaware Child Abuse Protection Act – on mandatory reporting of child sexual abuse. Here is a link to the Delaware law:
http://delcode.delaware.gov/title16/c009/sc01/index.shtml
The Delaware Child Abuse Protection Act applies to ANY person in Delaware who knows about child abuse or has good-faith reason to suspect that someone has committed child abuse. This means ANY member of our University community, including any student, faculty member or staff member. "Child" means any person under the age of 18.
Delaware has a prescribed reporting process. The law requires reports to be made to the Department of Services for Children, Youth and Their Families. Reports must ordinarily be made by telephone.
The Delaware Department of Services for Children, Youth and Their Families has a special website containing information on mandatory reporting requirements in Delaware. Here's the link:
http://kids.delaware.gov/fs/fs_iseethesigns.shtml
The state maintains a toll-free "Child Abuse and Neglect Report Line." The line is staffed 24 hours a day, seven days a week. The toll-free number is 1-800-292-9582.
If you see, hear about or know about possible child abuse on our campus, you must take the following three steps:
Immediate action is essential to protect all children on our campus, and is required by Delaware law.
If you have any questions, please call the General Counsel's Office at (302) 831-7366 or email us at generalcounsel@udel.edu.
This communication deals only with child abuse as defined in Delaware's mandatory reporting statute. The University has policies and procedures to address other forms of abuse, discrimination and harassment. For more information, please check the University's "Stop Hate" website at www.udel.edu/stophate.
March 29, 2012
Revisions to the University's Policy on the Delaware Freedom of Information Act
The University has revised its policy on compliance with the Delaware Freedom of Information Act. The new policy, which is part of the Executive Vice President’s online POLICIES AND PROCEDURES MANUAL, is available here.
The revised policy conforms to the template promulgated by Governor Markell when the Governor signed Executive Order Number Thirty One on October 20, 2011. The University’s revised policy makes the following changes:
The changes are effective immediately. For more information on the Delaware Freedom of Information Act, please click here.
March 6, 2012
Unauthorized Posting of Test Questions, Notes, and Other Classroom Materials on Web Sites
There are many commercial web sites that allow students to register, pay a fee, and download lecture notes, test questions, and other materials from courses taught by University of Delaware faculty members. There are also web sites which hire UD students and pay them to take notes in class and post them online.
The practice of commercializing course materials potentially violates the Digital Millennium Copyright Act. Faculty members are entitled to prohibit the practice if they choose to do so in order to protect their class lectures, test questions, and other course materials as copyright-protected intellectual property.
That can be done in any of three ways.
First, a faculty member can contact the General Counsel’s Office and request our assistance in sending a so-called “take-down notice” to the offending web site. In our experience, each of these web sites is quick to remove material when the site is informed that the material in question is copyright-protected.
Second, the faculty member can send a take-down notice himself or herself. This involves two steps:
Third, you can include in your syllabus a notice to the effect that your lectures and other course materials are copyright-protected and students are not authorized to commercialize the notes they take in class, the test questions they answer, or any other course-related materials. Were a student to violate that rule, the student would be subject to discipline under the Code of Conduct in UD’s Student Guide to University Policies (http://www.udel.edu/stuguide/11-12/code.html). Model language for inclusion in course syllabi can be found here.
These note-commercialization sites can be frustrating to deal with. Like many nooks and crannies of the web, these sites pop up with frequency and disappear just as quickly, each with its own copyright agent and arcane procedures for submitting take-down notices. The issue of how to protect faculty members’ intellectual property rights in dealing with these sites is very much on the minds of college and university attorneys all over the country and is a frequent topic of discuission on the higher education lawyers’ listserv. It takes a tremendous amount of time and effort to monitor all these sites and write the take-down notices, and most universities would say if pressed that it’s hard to police practices like this. Nevertheless, faculty members have recourse if they believe their intellectual property is being shared without their consent, and our office is happy to help.
If you have any questions or concerns about the template or the process for sending it, please feel free to call the General Counsel’s Office or, if you prefer, email me at lawwhite@udel.edu.
December 6, 2011
Significant Revisions to the United States Department of Education's Implementing Regulations Under the Family Educational Rights and Privacy Act ("FERPA")
On December 2, 2011, the United States Department of Education adopted final regulations amending its implementing regulations under the Family Educational Rights and Privacy Act.
The new regulations, along with a wealth of explanatory materials and template forms, were published in the Federal Register on December 2. The Federal Register text is available by clicking on this link. Additional materials appear on the home page of the Department of Education's Family Policy Compliance Officer, the agency responsible for enforcing FERPA. Those materials can be accessed by clicking on this link.
FERPA is a federal law that protects the confidentiality of student education records. General information on FERPA is available through a portal on the University of Delaware web site managed by the Registrar's Office and accessible by clicking on this link. Briefly, the purpose of the law is to ensure the accuracy, integrity, and confidentiality of education records maintained by colleges and universities concerning students. Under FERPA, a student is entitled to be told what education records the university maintains; has a right to inspect most education records containing the student's name or personally identifiable information; and has a right to correct erroneous education records. A university is obligated to use education records only for their intended purposes, and may share education records with third parties only under prescribed circumstances.
The statutory term "education record" is inclusively defined to mean any record, file, document, or other material that contains information directly related to a student and is maintained by the university or a person acting for the university. A student, for FERPA purposes, is a matriculant, regardless of age or enrollment status (full-time or part-time). The definition of student excludes unsuccessful applicants for admission who have never attended the university.
At the heart of FERPA's statutory scheme is a set of carefully drafted and often amended regulations governing the circumstances under which an education record can be shared with third parties without the consent of the subject of the record. Under the law and implementing regulations, an education record can be disclosed only if (a) the student identified in the record consents in writing to disclosure, or (b) the disclosure comes within certain narrowly prescribed exceptions to the written-consent requirement.
The Department of Education's implementing regulations contain sixteen enumerated circumstances under which disclosure may be made without the consent of the subject of the education record. Non-consensual disclosure may be made under the following exceptions to the written consent rule, among others specified in the regulations:
(1) To other university officials and offices with "legitimate educational interests."
(2) To another university at which the student seeks or intends to enroll (subject to some complicated exceptions).
(3) To federal or state educational authorities.
(4) In connection with an application for financial aid.
(5) To an accrediting organization.
(6) To parents of a "dependent student" (as the term in quotation marks is defined in the Internal Revenue Code).
(7) To comply with a judicial order or lawfully issued subpoena.
(8) To cope with a health or safety emergency, but only when necessary to protect the health or safety of the student who is the subject of the education record.
(9) To the victim of a crime of violence or a non-forcible sex offense.
In addition to these often-invoked exceptions permitting nonconsensual disclosure of education records, the FERPA regulations contain two other exceptions that have proven to be problematic over the years:
The new amendments to the FERPA regulations broaden these two exceptions to allow greater longitudinal data-sharing with state departments of education and local school districts in order to facilitate states' abilities to conduct statewide assessment and evaluation programs. The new regulations also prescribe standards for written agreements between universities and external assessment organizations designed to ensure that the confidentiality of education records are protected and preserved once those records are turned over to organizations conducting studies, evaluations, and audits.
For additional information on the revisions to the Department of Education's FERPA regulations, please contact the General Counsel's Office.
December 5, 2011
Joint Justice Department-Education Department Guidance on Promoting Diversity in College and University Admissions Programs
On Friday, December 2, the United States Justice Department and the United States Department of Education issued a new guidance addressing the permissible use of race as a factor in college and university admissions programs. This important guidance restates and clarifies the legal standards applicable to admissions programs designed to foster student-body diversity. The guidance replaces one on the same subject issued by the Bush Administration in 2008.
You can view a copy of the new guidance on the Department of Education web site by clicking on this link.
The General Counsel's Office offers these very preliminary interpretive comments on the new guidance:
(1) This is a guidance. It is an interpretation of federal statutory and judicial law on diversity. At this stage it is not binding on courts.
(2) The guidance offers helpful clarification on the extent to which an institution may explicitly rely on race in making admissions decisions. One of the key paragraphs in the guidance advises colleges and universities:
If race-neutral approaches would be unworkable to achieve your compelling interest, you may then consider approaches that take into account the race of individual students. When taking into account an individual student's race among other factors to achieve diversity, evaluate each student as an individual and do not make the student's race his or her defining characteristic. Periodically review your program to determine if you continue to need to consider the race of individual students to achieve your compelling interest. It is important to ensure that race is used to the least extent needed to workably serve your compelling interest.
(3) The guidance encourages institutions to develop a wide array of pipeline programs, recruitment and outreach programs, mentoring programs, and retention programs, all of which may” under appropriate circumstances" use race as an explicit selection criterion.
(4) The guidance contains an important admonition:
It would be helpful to maintain documents that describe your compelling interest, and the process your institution has followed in arriving at your decisions, including alternatives you considered and rejected and the ways in which your chosen approach helps to achieve diversity. These documents will help you answer questions that may arise about the basis for your decisions.
Diversity-enhancing programs on our campus should be designed and implemented with this admonition in mind.
(5) The guidance addresses only the most well-settled diversity question: the standard applicable to programs for the admission of students. It says nothing about diversity programs in financial aid or employment arenas, leaving the higher education community to determine on its own what the Justice Department, the Education Department, and courts would say if institutions sought to apply the principles in the guidance in contexts other than admission.
The General Counsel's Office will post additional information about the guidance on its web site as information becomes available.
November 15, 2011
Everyone in the UD community is committed to preventing the abuse of children.
All states, including Delaware, have laws that require people who witness or know about child abuse to report it to the authorities.
At Pennsylvania State University, two officials were indicted earlier this month on criminal charges of violating Pennsylvania's mandatory reporting statute. Since then, the General Counsel's Office here at the University of Delaware has received many inquiries about the standards in Delaware for reporting child abuse. Now is the time for all of us to review Delaware's mandatory reporting statute and make sure we understand the process.
DELAWARE'S CHILD ABUSE PROTECTION ACT IS MUCH BROADER THAN CORRESPONDING STATUTES IN OTHER STATES. Here is a link to the Delaware law: http://delcode.delaware.gov/title16/c009/sc01/index.shtml
The Delaware Child Abuse Protection Act applies to ANY person in Delaware who knows about child abuse or has good-faith reason to suspect that someone has committed child abuse. This means ANY member of our University community, including any student, faculty member or staff member. "Child" means any person under the age of 18.
Delaware has a prescribed reporting process. The law requires reports to be made to the Department of Services for Children, Youth and Their Families. Reports must ordinarily be made by telephone.
The Delaware Department of Services for Children, Youth and Their Families has a special website containing information on mandatory reporting requirements in Delaware. Here's the link: http://kids.delaware.gov/fs/fs_iseethesigns.shtml
The state maintains a toll-free "Child Abuse and Neglect Report Line." The line is staffed 24 hours a day, seven days a week. The toll-free number is 1-800-292-9582.
If you see, hear about or know about possible child abuse on our campus, you must take the following three steps:
Immediate action is essential to protect all children on our campus, and is required by Delaware law.
If you have any questions, please call the General Counsel's Office at (302) 831-7361 or email us at generalcounsel@udel.edu.
This communication deals only with child abuse as defined in Delaware's mandatory reporting statute. The University has policies and procedures to address other forms of abuse, discrimination, and harassment. For more information, please check the University's "Stop Hate" web site at www.udel.edu/stophate.
Thank you.
