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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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Freedom of Expression on Campus Post-Election

The 2016 U.S. presidential election was arguably the most publicized election in U.S. history. College campuses saw an uprise in student activism throughout the campaign and after President Trump’s victory. According to CNN, voter turnout for the 2016 presidential election dropped to nearly the lowest point in two decades, leading to the results of what has been called the biggest upset in presidential history. College campuses have acted as political stages throughout history with the 2016 election being no exception, particularly in regards to issues of students’ freedom of expression.

The First Amendment of the U.S. Constitution states:

“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.”

Institutions throughout the country have been at the forefront of balancing students’ constitutional rights while protecting the safety of their students. The Southern Poverty Law Center counted 867 cases of hateful harassment or intimidation in the U.S. in the 10 days after the 2016 election. Amongst the top four locations for such harassment were colleges and universities. Feelings of tension and fear have swept across higher education institutions; many are turning to the First Amendment for guidance in addressing such issues.

According to an article in the Ohio Northern University Law Review, institutions have faced a growing hate speech problem since the 1980’s, leading to the implementation of university “speech codes.” Various institutions, such as University of Michigan, Central Michigan University, and the University of Wisconsin-Madison, have claimed speech codes to be unconstitutional. In Doe v. University of Michigan (1989) the court found the university’s “Policy on Discrimination and Discriminatory Harassment of Students in the University Environment” unconstitutional due to the overbroad language sought to punish substantial amounts of constitutionally protected speech. Although this ruling has protected the freedom of speech, arguably it has exposed vulnerable populations to criticism leaving many students concerned for their safety.

The landmark case Tinker v. Des Moines (1969) affirmed the First Amendment rights of students in school. In a 7-2 decision the U.S. Supreme Court held that the school district had violated the student’s freedom of expression, particularly in regard to symbolic speech, when the school suspended two students for wearing black armbands in protest of the Vietnam War. The court found that armbands did not cause substantial disruption or interference, therefore was deemed unconstitutional.  More recently in September 2016, an incident between two students at Mount Royal University (MRU) occurred testing a student’s right to freedom of symbolic speech. Zoe Slusar, former Vice President of Student Life at MRU, caused a scene as she attempted to remove a “Make America Great Again” hat off of a student. Slusar argued that the hat was not allowed on the university and that the slogan expressed hate language. Slusar later issued a statement acknowledging that the student was allowed to wear the hat due to the First Amendment freedom of expression protection. The MRU incident has similar implications in relation to Tinker v. Des Moines, that as long as the symbolic speech does not cause substantial disruption, then the action is protected under the First Amendment.

Other incidents have been noted on college campuses drawing attention towards institutional reactions after the election. The 1989 U.S. Supreme Court Case Texas v. Johnson found in a 5-4 ruling that states could not forbid the burning of the U.S. flag in protest because it would violate their First Amendment freedom of speech, specificly expressive conduct. On Wednesday, November 9th, 2016, students at American University in Washington, DC, burned U.S. flags in protest to Trump’s victory. The university issued a statement supporting the free expression, but additionally stated that the institution does not condone the burning of the American flag although the act is protected speech. The article, “Burning Crosses on Campus: University Hate Speech Codes,” in the Connecticut Law Review explains that hate speech that is overtly derogatory toward vulnerable groups consistently occurs on college campuses. Institutions are seeing this phenomena with the recent Travel Ban Executive Order by President Trump, including the attack on a Muslim student at San Jose State University just one day after the election.

It is no surprise that an election year is accompanied with tension, therefore it is often the way that institutions respond to particular situations that make headlines. The 2016 presidential election challenged students from all political views and continues to test their First Amendment rights. It is impossible to predict the next four years; however, if the statement “the best predictor of future behavior is past behavior” is true, then colleges and universities will need to continue utilizing their resources to maintain the safety and constitutional rights of their students.

This post was co-authored by Ms. Kathleen Kittridge and Dr. David Nguyen. Ms. Kittridge is a gradaute assistant at the University of North Dakota in the Office of Career Services and a masters student in the UND Higher Education program.


Exempt or Non-Exempt: The Fair Labor Standards Act and Higher Education

The Fair Labor Standards Act (FLSA) was enacted in 1938, creating provisions for a 40-hour work week, a national minimum wage, and the time and one half rule, as well as child labor protection provisions.  Over the years, there have been changes, challenges and violations through our court systems and legislatures.  The Federal Minimum Wage Level has been addressed in state legislative sessions often, with just 22 states/districts remaining that have a minimum wage at the federal level of $7.25 set by FLSA.  Litigation brought about by individuals or groups who believe they have been unjustly denied overtime under FLSA rules exist as well. In the early case of Robertson v. Argus Hosiery Mills, Inc., filed in 1938, overtime and interstate commerce laws were challenged unsuccessfully.  A more recent incident involving wide spread fraud at Wells Fargo gained notice from eight U.S. Senators regarding possible FLSA violations, when they asked the Department of Labor (DOL) to investigate whether FLSA laws were violated in a letter sent in September of 2016.

Since 2004, the minimum salary level for executive, professional, and administrative employees (or white collar employees) considered exempt has been $455 per week, provided they also meet the Duties Test for their position.  The proposed change for 2016, referred to as the Final Rule, intends to nearly double that amount, bringing it to $913 per week.  Meaning that employees who meet the Duties Test, would need to be evaluated if they are below this amount.  Non-exempt employees, which are those already eligible for overtime under FLSA, would be unaffected by this change.

How does this specifically affect higher education?  With tighter budgets in higher education across the nation, the financial burden could have a significate impact on many institutions, but because of the unique role that higher education plays in society, FLSA has several provisions that apply to institutional personnel that make them ineligible for overtime and unaffected by the Final Rule change.  This list includes: faculty; coaches, if their primary duties are coaching; graduate and/or undergraduate students; resident advisor; and academic administrative personnel, such as department heads, academic counselors, advisors, etc.

 Which employees could be affected in higher education?  Positions include: postdoctoral scholars, non-academic administrative employees, part-time employees, and partial-year employees.  FLSA could also affect other professional level employees at an institution which can include: administrative officers, executive assistants, research associates, aviation and building service professionals, technology experts, and law enforcement, among others.  It is also predicted that this change could significantly limit entry-level job opportunities in higher education. 

 The Final Rule provides several options for institutions related to this group of employees including: raise salaries for those not meeting the minimum threshold and who meet the Duties Test, evaluate and realign employee’s workloads, pay overtime above the salary, or adjust an employee’s base and overtime pay.

 When will the change take place?  The original effective date was December 1, 2016, but in September of that year, 21 U.S. states and 50 business groups filed a lawsuit to enjoin the implementation of the “Final Rule,”, arguing it would force states and business to substantially increase their labor costs.  The lawsuits were joined and are referred to as State of Nevada et al. v. U.S. Department of Labor.  The plaintiffs requested an emergency injunction that was granted and temporarily bars the regulation from going into effect nationwide.

This litigation temporarily exempts employers, including higher education institutions, from making any adjustments to salaries or, to take any of the above listed actions.  On December 1, the Department of Justice, on behalf of the DOL, filed a notice to appeal the preliminary injunction moving to expedite the appeal, which was approved by the Court.  All of which could be a moot point in the near future if President Trump’s DOL decides to withdraw the appeal, at which point the lower courts could decide to issue a permanent injunction, killing the Final Rule all together.

Tina's role in human resource within higher education revealed that most of our department’s employees already exceeded the minimum salary, making the rule immaterial, which may or may not translate to the majority of the college.  In the end, the true question might not be whether $913 is too much for the white collar employee, but might be did the DOL jump too high?  After a mere 13 years unchanged, currently the “Final Rule” remains to be seen. 

This post was co-authored by Ms. Tina Monette and Dr. David Nguyen. Ms. Monette is a Human Resources Assistant at the University of North Dakota in the John D. Odegard School of Aerospace Sciences and a masters student in the UND Higher Education program.


Religious Institutions and the Battle Over the Affordable Care Act’s Contraception Mandate

The Patient Protection and Affordable Care Act, better known as the Affordable Care Act (ACA), was signed into law by President Barack Obama on March 23, 2010, and later upheld by the United States Supreme Court on June 28, 2012. The law was written to accomplish a number of things, among them to increase health insurance access and quality. One major point of contention with the law was a contraception mandate – a requirement for all employers and educational institutions to provide female contraception coverage. The law noted one exception to those under its influence – churches and houses of worship. The law provided four requirements to be considered a religious employer and to receive the exemption:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

Much to the disapproval of many religious organizations, the requirements to be exempt from the mandate did not cover religious schools, religious hospitals, religious charities, and other businesses and organizations owned and controlled by religious groups. Even though many private religious schools’ missions cover more than simply the inculcation (teaching) of religious values, their exemption status was not granted. Organizations that failed to provide health coverage would be subjected to a fee. By mandating contraception coverage, many of these organizations felt their religious tenets were being compromised.

The Obama Administration offered an opt-out compromise allowing religious nonprofits to explicitly state their opposition to the contraception mandate and to have the organizations’ insurance companies cover the cost of the contraceptives at no financial burden to the nonprofit. Several religious nonprofits still felt this compromise was not satisfactory as they felt responsible for the providence of contraceptives. This resulted in multiple lawsuits.

Colorado Christian University (CCU), a private religious institution in Denver, Colorado, filed a lawsuit in 2011 against the United States Department of Health and Human Services (HHS) related to the contraception mandate. The case was rejected but then renewed again in 2013. In 2014 CCU was granted an injunction from the contraception mandate by the Colorado district court. The result was that CCU would not have to pay a fee for failing to provide contraception health care until later court rulings affected the lawsuit.

The 10th U.S. Circuit Court of Appeals heard a lawsuit against the contraception mandate by a private corporation, Hobby Lobby. Burwell v. Hobby Lobby was heard by the United States Supreme Court and a decision was rendered in 2014. The court ruled 5-4 in favor of Hobby Lobby allowing closely held for-profit religious corporations to be exempt from the contraception mandate if there was a less restrictive means of accomplishing the law’s intent. The decision cited the Religious Freedom Restoration Act of 1993 as evidence.

In Oklahoma an appeal of a similar lawsuit to CCU’s was rejected in 2015. The 10th U.S. Circuit Court of Appeals ruled against four Oklahoma Christian universities who were seeking an exemption from the contraception mandate. The court decided that the law and its religious exemptions do not violate the schools’ religious freedom. This ruling upheld the accommodation created by the Obama Administration.

With the contraception mandate still in effect and the compromise offering the best alternative for many religious institutions, dissenting schools were forced to utilize a few different options: compliance with the law, lawsuits challenging the law and seeking injunctions, or not paying the fee. On July 31, 2015, Wheaton College, a private Christian institution, ended their student health insurance, utilized by a quarter (approximately 3,000 individuals) of the student population due to conflicts with their centrally held religious beliefs.

Currently both sides of the issue appear to be at an impasse. In May of 2016, the Supreme Court sent the case back to the appellate courts, asking the federal appeals courts to reach a compromise on the issue. With the new Trump administration coming into power, there are likely to be some significant changes to how the law exists and gets enforced during his tenure. Provided a 9th Justice is still yet to be added, the Supreme Court might still decide on the contraception mandate in the future.

This post was co-authored by Mr. Andy Hieber and Dr. David Nguyen. Mr. Hieber is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.


Shaped by Challenges: Affirmative Action in Higher Education Admissions

Diversity within the U.S. public education system is an ongoing topic of dissent and debate. Brown v. Board of Education of Topeka, KS was a landmark case decided in 1954 that overturned the “separate but equal” ruling of Plessy v. Ferguson in 1896. Affirmative action in American education began from the 1960’s Civil Rights Movement and President John F. Kennedy’s first issuance of the order in 1961. That executive order was to ensure equal opportunity employment “without regard to their race, creed, color, or national origin” for government jobs. Affirmative action has impacted federally funded higher education institutions’ policies regarding the employment of faculty and staff, as well as student admissions. The commitment to increased diversity has sparked dissention from some individuals and groups who feel they are disadvantaged by affirmative action policies resulting in many legal cases. These cases have challenged and shaped the way affirmative action is used and interpreted within the field.

In the case of Regents of Univ. of California v. Bakke (1978), the U.S. Supreme Court heard the complaint of Bakke, a white, male student who was denied admission in both 1973 and 1974 to the University of California Davis (UC Davis) Medical School despite a high-achieving academic record. At the time UC Davis had two admissions programs – general admissions and special admissions. Under the special admissions process, 16 places in the incoming class were reserved for students who were considered as economically or educationally disadvantaged or a member of a minority group. Bakke argued that the special admissions program was a violation of the Equal Protection Clause of the Fourteenth Amendment. While the Court ruled in favor of Bakke stating that racial, quota-based admissions processes were unconstitutional, it found that diversity in higher education was a compelling state interest and some applications of affirmative action within admissions are constitutional so long as they are narrowly tailored.

In the case of Grutter v. Bollinger (2003), the U.S. Supreme Court heard the complaint of Grutter, a white, female student who was denied admission to the University of Michigan Law School (UM) who claimed she was rejected on the basis of her race. Grutter argued this was discrimination and a violation of the Fourteenth Amendment. UM stood by its commitment to diversity and explained that its admissions procedure did not restrict the types of diversity that were considered in admissions to only race and ethnicity. It adopted a holistic view of admissions and only considered race as a “plus” not as a determinant. The court ruled that UM’s use of race in admissions decisions and commitment to obtaining the educational benefit from a diverse student population was constitutional.

In the case of Fisher v. University of Texas at Austin (2016), the U.S. Supreme Court heard the complaint of Fisher, a white, female student who was denied admission to the University of Texas at Austin (UT Austin) undergraduate program in 2008. Fisher claimed that the consideration of race in admissions disadvantaged her and was a violation of the Equal Protection Clause of the Fourteenth Amendment. In 2008, UT Austin’s admissions policy offered admission to all Texas high school students who graduated in the top 10% of their class, required by the Texas Top Ten Percent Law. The remaining spaces in the entering class, approximately 25%, were filled by considering the applicant’s “Academic Index” and their “Personal Achievement Index.” The Personal Achievement Index was a holistic review of the student containing many factors, one of which was race. UT Austin defended that race-neutral programs had not achieved the University’s diversity goals. The Court ruled that UT Austin’s admissions policy was constitutional with the University’s continued obligation to review their standards to ensure that race is no greater a factor in admission than necessary. It was likely that the Top Ten Percent Law was more of a factor in Fisher’s rejection than the consideration of race.

As for the future of affirmative action in higher education, consideration of race in admission decisions has been lawfully banned in many states. Justice O'Connor has expressed her belief that race-conscious admissions policies have an expiration date. She is unwilling to support a permanent justification for racial preferences. Race-neutral policies could be the goal, but current strategies do not appear to be as effective at achieving diversity in student populations. Although affirmative action and related rulings provide guidelines for universities to achieve a diverse student populations reflective of the U.S. population, there is still much work to be done within higher education to achieve equity and diversity.

This post was co-authored by Ms. Lindsay Stack and Dr. David Nguyen. Ms. Stack is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.


Iowa State University Loses Marijuana T-Shirt Case

As reported in The Des Moines Register (available here), a federal appeals court has ruled that Iowa State University officials violated students' First Amendment rights in blocking their printing of T-shirts with a design that contained the school's mascot and a marijuana leaf. The students belonged to a student organization that advocated the legalization of marijuana use under state and federal laws. The opinion from the U.S. Court of Appeals for the Eighth Circuit is available here.

The university sought to block the production of the T-shirts on the basis that it could control distribution of images trademarked by the university, even if it allowed other student organizations to use such images. Iowa State permitted student organizations to use the institution's mascot and other trademarked images if certain conditions were satisfied. Initially, the institution gave permission for the student group to use the mascot image on its T-shirt. After media coverage about the group's planned use of the university's mascot garnered negative attention, including from lawmakers, institutional officials moved to revoke permission for the group to use the mascot on its T-shirts. The university argued that political push back did not inform the decision to deny the students use of the mascot, but the court did not accept these arguments. Instead, the court determined that institutional officials had engaged in impermissible viewpoint discrimination by seeking to revoke the use of the mascot based only on concern or disagreement with the student group's views on the legalization of marijuana.

The university argued that even if officials engaged in viewpoint discrimination, they committed no violation of the students' First Amendment rights because the "trademark licensing regime should be considered government speech."  As such, according to the university, it could, via its trademark rights, control the use of university images by student organizations (i.e., permitting use by student groups offering views condoned or favored by institutional officials). However, according to the court, the "government speech doctrine does not apply if a government entity has created a limited public forum for speech."  Having created a limited public forum for student speech in which students could use images trademarked by the university, the institution could then not pick and choose messages with which it agreed and disagreed in allowing students to use trademarked images.

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