Tuesday, May 30, 2017

Religion, Press Freedom, and Equal Protection on Campus

Establishment of Religion

Viewpoint neutrality extends beyond political speech on campus, and into what may be an even more contentious area – religious freedom. The courts have ruled that colleges cannot treat individuals or groups espousing a religious belief in away that is less favorable than other religious or secular groups on campus. The courts have struck down rules that prohibited religious groups from using campus facilities or being awarded funding. If secular groups receive access to funding or facilities at a public institution of higher learning, then religious groups must also receive funding and access to facilities under the same criteria as secular groups seeking services from the school.

At the same time, in order to remain viewpoint neutral in the eyes of the courts may not take actions that establish a specific religious tradition or practice at a public institution. Because this is a contentious issue, the Supreme Court has developed a three-pronged approach known as the Lemon test to assess the policies colleges set. Essentially, programs must have a secular purpose, must not hinder or promote religion, and does create government entanglement. One effect of the Lemon test is to make fora on campus that secular groups can access also open to religious groups. The most obvious result on some campuses is that student affairs administrators end being required to allow members of religions to preach in public for a on campus unless they cause a significant disturbance to the educational mission. When I was a student at the University of Alabama, this meant that students, especially female students, found themselves the targets of the harangues of an individual calling himself “Brother Micah” as they went to the student center on campus.

Freedom of the Press

Student organizations have levels of press freedom at colleges and universities far beyond that found in the K-12 setting as a result of the 1973 Papish ruling by the Supreme Court, which affirmed that student organizations in higher education have the same press freedoms as regular media. Both content censorship and prior restrain of student media are generally held to be unconstitutional. This means that campus newspapers are subject to the same standards as other publications in regard to defamation and copyright. Electronic student media have the same levels of protections, although, student affairs administrators can still impose limits on Internet access  or other limited public for a or nonfora – analysis of appropriate time, place, and manner still apply to campus media organizations. In an area that is potentially less obvious, the courts have ruled that media generated as part of a class assignment for grades or other evaluation, may be more closely regulated in regards to academic standards. In the teaching role, colleges can use grades to assert that articles do not meet academic standards for quality. In another caveat for administrators and faculty, though, even when a campus newspaper is produced in class, the college still cannot exercise censorship over the content.

Right to Privacy

The issue of student rights to privacy seems one of the more challenging of the civil rights that student affairs administrators must navigate. In some regards a right to privacy is implied in the First Amendment to the Constitution in the rights to free speech or association, as students cannot be forced to speak or join organizations outside the context of the classroom. In addition, although campus administrators are not law enforcement, the Fourth Amendment’s protections against illegal search and seizure apply at public colleges. In practice, it seems that student affairs administrators need to be more aware of the restraints and requirements of Federal and state privacy laws on student privacy. FERPA, for example allows students access to their records, and allows employees of an institution of higher education to discuss a student if there is a legitimate educational reason to do so, but it also prevents them from releasing information about a student’s grades or class performance without written permission unless health and safety are at stake. As in other parts of life, individual privacy rights tend to be less if safety is an issue, so student affairs administrators are advised to err on the side of caution when privacy is an issue – if there is a legitimate reason to know that students are a danger to themselves or others, it is best to contact appropriate authorities and face potential privacy litigation than to risk that people be harmed by their inaction.

Equal Protection

Federal law and Supreme Court rulings have established that institutions of higher education may not discriminate based on race or gender. The Court’s ruling in Brown v the Board of Education in 1954 and Title VI of the Civil Rights Act of 1964 ban discrimination based on race, while Title IX bars discrimination based on gender. There are some important exceptions for Greek organizations, religious schools, and military academies, but in general, at public institutions of higher education, may not discriminate based on either of these categories. In addition, the Rehabilitation Act and Americans with Disabilities Acts prohibit discrimination based on disability.

When it comes to race-based discrimination, the issue that seems the largest challenge for student affairs administrators in the 21st century is the issue of Affirmative Action in admissions or access to limited programs. The courts have ruled that quotas and systems that treat students as groups based on race or ethnicity are not acceptable ways to promote diversity. Student affairs administrators are encouraged to evaluate each student as an individual, and can use race only as a bonus on a student’s side when considering them for admission if it can be shown that doing so to enhance diversity is a benefit to the educational mission.

Disability seems another area in which student affairs administrators face a very difficult task in acting appropriately, serving student needs, and following legislation. Part of the problem is that because higher education is not legally defined as a right, when students leave the K-12 environment for college, they face a radically different methodology when it comes to accommodation. In colleges, students needing accommodation must self-identify in order to receive evaluation and accommodation. Student affairs administrators also face the challenge of not having established competencies to guide admissions to disciplines, which makes it more difficult to determine whether a student with a disability could succeed regardless of their disability. Once again, treating students as individuals, and evaluating each case on its own is really the watchword for student affairs administrators. Disability law is so highly specialized that administrators to seek help from specialists when dealing with this area of responsibility.


Lake, Peter F, Foundations of higher education law & policy: Basic legal rules, concepts, and principles for student affairs. Washington, DC: NASPA.

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