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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Supreme Court upholds Michigan voters' ban on race in university admissions

Today the U.S. Supreme Court issued an opinion in Schuette v. Coalition to Defend Affirmative Action upholding a 2006 Michigan voter ban on the use of race in university admissions. Following the Court's 2003 decision in Grutter v. Bollinger, which confirmed that a narrowly tailored system to consider race in higher education admissions was constitutional, voters in Michigan approved a ban on the use of affirmative action in state higher education, as well as in the awarding of state contracts.

The Court's 108-page slip opinion (and 6-2 vote) overturns a prior 6th Circuit ruling. Delivering the majority opinion for the Court, Justice Kennedy stressed that the issue at hand was not whether the ban injured certain parties but whether such a ban by voters was constitutional:

"Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. . . [T]his Nation's constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here."

In addition to Kennedy's majority opinion, Justices Roberts, Scalia, and Breyer issued separate concurring opinions.

Justice Sotomayor wrote the lone dissent, joined by Justice Ginsburg: "We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups. For that reason, our Constitution places limits on what a majority of the people may do." Referring to historically biased practices such as voter laws and literacy tests, she continued, "Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process."

It is important to note that today's ruling does not reverse prior rulings allowing for the use of race in higher education admissions (Bakke, Grutter, Fisher) but does pave the way for more states to introduce legislation that would allow voters to make a choice as to whether they support the use of affirmative action.



Big 10 Higher Education Summer Institute Course – "Legal Aspects of Access and Equity in Higher Education"

Registration is now open for the 2014 BIG 10 Higher Education Summer Institute at the University of Minnesota. This year's Institute, “Summer in the Cities: The 2014 Big 10 Higher Education Summer Institute,” will take place at the University of Minnesota Twin Cities campus.

This year, a course designed for higher education graduate students and law students is being offered as an intensive, week-long course (and you don’t have to be a student at a Big 10 Campus to sign up!). The course is being taught by our very own Jeffrey Sun and Karen Miksch. The course, Legal Aspects of Access and Equity in Higher Education, will be taught June 9‐13, 2014.

To learn more about the course and register on-line, please visit:


Sexual assault and college athletics

Last December, following the publication of a Sports Illustrated op-ed addressing the Jameis Winston sexual assault investigation, a friend and colleague of mine and I discussed at length the issue of integrity in college athletics, particularly in the awarding of the Heisman Trophy.

Late last week, the Department of Education's Office of Civil Rights announced that it would investigate FSU's handling of the sexual assault case against this year's Heisman Winner, freshman Jameis Winston. I invited my colleague, Michael Klein*, to comment on this investigation in a guest blog post.

[*Michael Klein is the executive director of the New Jersey Association of State Colleges and Universities. Michael has published widely in the areas of intellectual property, collective bargaining, college and university finance, and First Amendment issues. His op-ed pieces have appeared in such publications as the New York Times and Newsweek. A sports enthusiast, Michael has also contributed to Sports Illustrated.]


Klein writes:

From a broad perspective, the Jameis Winston case at Florida State University spotlights expectations for, and consequences of, student conduct. In its response to the report that the U.S. Department of Education’s Office of Civil Rights is investigating whether it violated Title IX during its handling of the allegations against Winston, Florida State University referenced its Student Code of Conduct, “which sets high expectations for the university community and provides a way to adjudicate grievances.”

FSU’s Student Code of Conduct lists 15 wide-ranging categories under which violations may occur, including sexual misconduct, endangerment, and harassment; plus a 16th catch-all category for violations of laws, regulations, and the university’s Academic Honor Policy.

With such specific measures of behavior, codes of conduct—like FSU’s—are a good place for the members of the Heisman Trophy Trust to start when determining the “integrity” of candidates for the Heisman Memorial Trophy. The Heisman Trust Mission Statement states that the trophy “recognizes the outstanding college football player whose performance best exhibits the pursuit of excellence with integrity.” Football statistics like touchdowns, passing yards, and sacks help measure “excellence” on the field. Student codes of conduct can help evaluate “integrity” off the field. 


The OCR through the Dear Colleague letter and the Obama administration through its passage of the Campus SAVE Act have made concerted efforts to begin addressing this pervasive problem on campuses today. The intersection of athletics, sexual assault, and institutional response is ripe for research. Stay tuned.


NY Times Primer on the Student-Athlete Unionization

Joy Blanchard has a great posting on this blog about the Northwestern football players’ unionization efforts.  Today’s New York Times issue also has a useful primer.  I highly recommend the read!    


Order in the Court …?

I thought that Student Conduct Hearings were not courts!  Well, the Draft Regulation for the changes to the Clery Act pursuant to VAWA permits each party of sexual misconduct hearings to have an “advisor” of the party’s choice.  Basically, the proposed regulatory language allows parties of an “institutional disciplinary action in cases of alleged dating violence, domestic violence, dating violence, sexual assault, or stalking” an “opportunity to be accompanied to any related meeting or proceeding by the advisor of their choice.”

The Chronicle of Higher Education does a good job at explaining this potential problem.  My fear is that we’ll lawyer-up for everything and dismantle much of our educational mission.  If so, gear-up everyone; administrative preparation will be significantly in the area of legal issues.  I’d rather not see that happen (says the lawyer).  Let’s focus on efforts toward academic success and other developmental matters.    

I should add that higher education does need to examine how we ensure a prompt, fair, and impartial hearing process.  My hope is that we place more attention on getting standards of practice for our field. 

Let me state that – for now – the agency rule hasn’t been approved.  There is still more to come for the negotiated rulemaking process.  There is a public comment period.  That means that many of us in higher education must voice our thoughts about its potential impact (e.g., intended and unintended consequences).  I strongly urge your campuses to provide me and others data about its negative impacts on the parties, disruption to the conduct process, and estimated costs.