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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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
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
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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
Jan 15, 1936
June 5, 1950
May 17, 1954
July 2, 1964
• Sept 24 1965
•
• June 28, 1978
• Jan 31, 1992
• Mar 18, 1996
•
• Aug 17, 1998
• Dec 13, 2000
• Aug 17, 2013
• June 23, 2016
PLESSY v. FERGUSON
MURRAY v. PEARSON
SWEATT v. PAINTER
BROWN v. BOARD OF EDUCATION OF TOPEKA
(Louisiana)
(U of Maryland)
(U of Texas)
Civil Rights Act of 1964
Executive Order 11246
UNIVERSITY OF CALIFORNIA v. BAKKE
PODBERESKY v. KIRWAN
HOPWOOD v. STATE OF TEXAS
(U of California)
(U of Maryland)
(U of Texas)
GRUTTER v. …UNIVERSITY OF MICH LAW SCHOOL
GRATZ v. …UNIVERSITY OF MICHIGAN
FISHER v. U of TEXAS at AUSTIN
FISHER v. U of TEXAS at AUSTIN
(Fisher II)
(U of Michigan)
(U of Michigan)
(U of Texas)
(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
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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
WWII
© Mary Kennard 2016
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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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