Colleges and Universities

Author:Jeffrey Lehman, Shirelle Phelps

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The term college is a general one that encompasses a wide range of higher-education institutions, including those that offer two- to four-year programs in the arts and sciences, technical and vocational schools, and junior and community colleges. The term university specifically describes an institution that provides graduate and professional education in addition to four-year post-secondary education. Despite these distinctions, the terms college and university are frequently used interchangeably in the United States.

The first institution of higher education in the United States was Harvard College, founded in 1636. At the time of the Revolutionary War, nine colleges existed in the colonies?a number that had tripled by the time of the Civil War. In 1876, the first true university in the United States was established, with the founding of Johns Hopkins, in Baltimore. The university format rapidly gained popularity, and prominent private and state-run colleges soon assumed university status. According to the Statistical Abstract of the United States, 4,084 colleges and universities operated in the United States in 1999.

U.S. colleges and universities fall into two general categories: private and public. Private institutions are usually corporations operating under state charters. Although tuition and private gifts and endowments provide much of their financial support, most private colleges and universities also receive some degree of government support. Many of the 2,000-plus private colleges and universities in the United States claim a religious affiliation.

Public institutions are established either by state constitution or by statute, and they receive funding from state appropriations as well as tuition and endowments. Although the federal government operates several institutions of higher learning, such as the U.S. Military Academy and the U.S. Air Force Academy, it is prohibited by statute from exercising direct control over other educational institutions.

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.

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A sample collective bargaining agreement between the City of Stamford, Connecticut, and Teamsters Union Local #415.

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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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Racial Discrimination

The Equal Protection Clause and Public Institutions The Equal Protection Clause of the Fourteenth Amendment prohibits a state from denying to individuals the equal protection of the laws. This clause requires, among other things, that a state and its instrumentalities may not treat members of different racial or ethnic backgrounds differently unless the discriminatory action is necessary to achieve a compelling government purpose and is narrowly tailored to satisfy that purpose. Despite the Fourteenth Amendment's passage in 1870, public higher education in the United States remained legally segregated on the basis of race until the mid-1950s. This de jure (i.e., legally sanctioned) SEGREGATION may be traced to a pre-Civil War decision by the Massachusetts Supreme Court upholding the legality of segregated schools in the heart of abolitionist territory (Roberts v. Boston, 59 Mass. [5 Cush.] 198 [1849]).

After the Civil War, Congress outlawed SLAVERY and made discrimination by the state unconstitutional, with the Thirteenth and Fourteenth Amendments to the Constitution. Not much changed, however, as states, obligated to provide all citizens with the equal protection of the laws, devised bifurcated educational systems that provided white citizens with one set of schools and black citizens with a supposedly parallel, but grossly underfunded and qualitatively inferior, set of schools. These systems were approved by the U.S. Supreme Court as "separate but equal" in Cumming v. Board of Education of Richmond County, 175 U.S. 528, 20 S. Ct. 197, 44 L. Ed. 262 (1899).

Public centers of higher education also remained segregated and unequal. Many states established dual systems of higher education. A number of states established whites-only flagship campuses, with separate blacks-only campuses that received less funding and fewer resources; others simply refused to admit black students.

In the early twentieth century, the National Association for the Advancement of Colored People (NAACP) began its attack against segregated schools at the university level, where it won a series of cases that eroded the SEPARATE-BUT-EQUAL principle. In the first of these cases, decided under the Equal Protection Clause, the U.S. Supreme Court ruled that a state could not avoid training qualified black law students by providing them tuition payments to out-of-state

law schools rather than permitting them to attend an in-state school (Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 59 S. Ct. 232, 83 L. Ed. 208 [1938]). Next, in McLaurin v. Oklahoma State Regents, 339 U.S. 637, 70 S. Ct. 851, 94 L. Ed. 1149 (1950), the Court held that the University of Oklahoma could not force its only black graduate student to sit in a hallway adjoining the classroom in which a course was offered, nor could it require the student to sit behind a railing marked "Reserved for Colored." Finally, in Sweatt v. Painter, 339 U.S. 629, 70 S. Ct. 848, 94 L. Ed. 1114 (1950), the Court found that a proposed blacks-only law school in Texas would be unequal to the prestigious and then-all-white University of Texas Law School not only in the...

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