Colleges and Universities
The Legal Climate
U.S. colleges and universities are governed by many of the same laws that regulate the rest of U.S. society. In addition, they have generated a unique body of law. Educational institutions reflect the legal climate of the rest of the country, but the importance of a good education has elevated equal access, equal opportunity, and ACADEMIC FREEDOM to a higher status than they might otherwise assume.
Three general types of laws affect the operation of colleges and universities. State laws affect public and private colleges and universities in the absence of federal laws that supersede them. Federal laws may affect public and private institutions, and they usually affect entities that receive federal funding or that are subject to regulation under the COMMERCE CLAUSE of the Constitution. The most common such laws are statutes that prohibit discrimination. Finally, the Constitution governs public, but almost never private, institutions.
As state entities, public institutions must conform to constitutional provisions that prohibit the state from discriminating and from denying constitutional rights. Thus, much of the law of public institutions stems from constitutional amendments such as the following:
- the Free Speech Clause of the FIRST AMENDMENT, which guarantees that the government will not interfere with FREEDOM OF SPEECH
- the Free Exercise Clause of the First Amendment, which ensures that the government will not interfere with or outlaw religious expression
- the Establishment Clause of the First Amendment, which prohibits the government from endorsing or establishing a state religion
- the EQUAL PROTECTION CLAUSE of the FOURTEENTH AMENDMENT, which guarantees that a state will enforce its laws equally with respect to all persons, with certain exceptions
- the DUE PROCESS CLAUSE of the Fourteenth Amendment, which requires the state to provide certain procedural safeguards before depriving an individual of a liberty or property interest. State-run institutions also are subject to state and often federal law.
Private institutions are not governed directly by the Constitution. Instead, they are regulated solely by state and federal law. Since the mid 1960s, federal laws enacted pursuant to Congress's power to regulate interstate commerce have enabled the federal government to regulate much private university activity that the Constitution cannot reach directly. Such federal statutes often protect against discriminatory behavior not otherwise foreclosed by the Constitution, such as discrimination based on age or disability. Accordingly, a university may not discriminate merely because it is a private entity. The most important statutes governing the behavior of private universities are the same statutes regulating public accommodations, employment, and federally funded activities:
- Title VI of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a et seq., which prohibits discrimination on the basis of race by entities that receive federal funding
- Title VII of the CIVIL RIGHTS ACT of 1964, which prohibits discrimination on the basis of race, color, national origin, gender, or religion, by entities employing a certain number of workers (generally 15)
- Title IX of the Education Amendments of 1972 (codified in scattered sections of 7, 12, 16, 20, and 42 U.S.C.A.), which prohibits discrimination on the basis of gender by entities that receive federal funding
- the Age Discrimination in Employment Act, 29 U.S.C.A. § 621 et seq., which prohibits employment discrimination on the basis of age against individuals between the ages of 40 and 70 by entities employing a certain number of workers (generally twenty)
- the Americans with Disabilities Act of 1990, codified in scattered sections of 2, 29, 42, and 47 U.S.C.A., which prohibits discrimination on the basis of disability in public accommodations, transportation, and employment, by a wide range of privately owned entities
- the Rehabilitation Act of 1973, 29 U.S.C.A. § 701 et seq., which prohibits discrimination on the basis of disability by entities that receive federal funding
- the Higher Education Act, 20 U.S.C.A. § 403 et seq., which establishes federal financial aid programs and the conditions accompanying them; the EDUCATION DEPARTMENT (until 1980, the Department of Health, Education, and Welfare) administers Title VI, Title IX, and the Higher Education Act.
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