- Education Law Stories
Courses addressing legal issues that arise at universities and colleges are standard in higher education program curricula. Some instructors assign the student version of the text by William A. Kaplin and Barbara A. Lee, The Law of Higher Education (Jossey-Bass, 2007), which summarizes key decisions in a narrative. Others adopt the approach more common in law schools, working with edited versions of actual cases, using Michael A. Olivas’ The Law and Higher Education: Cases and Materials on Colleges in Court (Carolina Academic Press, 2006). As Olivas and Ronna Greff Schneider note in Education Law Stories (Foundation Press, 2008), students often wonder about the stories behind the cases they read, whether in summary or as edited, and explore in class. What the U.S. Supreme Court held in Grutter v. Bollinger is common knowledge, for instance, but who was Ms. Grutter and how did she become involved in the case that bears her name, how did the litigation develop and how did counsel on both sides manage and even prompt it, and what is the legacy of their efforts and what questions remain unanswered?
Olivas and Schneider have collected from various legal scholars chapters on twelve cases in education law that ask such questions. Five of these are in higher education: Gruttter (affirmative action in selective admissions); U.S. v. Virginia (opening a single-sex public military college to women); Southeastern Community College v. Davis (admission of a hearing impaired nursing student); Board of Regents v. Southworth (mandatory fees to support student organizations); and Keyishian v. Board of Regents (loyalty oaths for university faculty). The other cases address similar civil rights issues in primary and secondary education, including: Brown v. Board of Education (de jure segregation in public schools); San Antonio Independent School District v. Rodriguez (equity across school districts in state funding for public education); Lau v. Nichols (English language instruction to non-English speaking public school students); Hazelwood School District v. Kuhlmeier (public school censorship of a student newspaper); Edwards v. Aguillard (teaching creation science in public schools); Santa Fe Independent School District v. Doe (prayer before football games at a public school); and Pottawatomie County v. Lindsay Earls (drug testing for participants in extra-curricular activities in public schools). Olivas and Schneider rightly argue that understanding what happened before and after various judicial decisions is useful in analyzing them, including in exploring the open questions that future holdings may address.
The chapter on Grutter by Wendy Parker is representative. Parker explains how the Center for Individual Rights (CIR) became involved in the case as part of a series of lawsuits challenging affirmative action in admissions. Included in these was a notable 1996 U.S. Court of Appeals for the Fifth Circuit decision in favor of plaintiff Cheryl Hopwood against the University of Texas School of Law. Barbara Grutter, a forty-three year old mother of two boys, Parker explains, believed that, in rejecting her application for admission, the University [End Page 719] of Michigan Law School admitted minority students with lower scores and grades. Setting the context for Grutter, Parker begins, as do many of the chapters, with historical context, discussing the effective limits within the Ivy League on admitting Jewish students beginning in the 1920s, effort at Southern universities to exclude African-American applicants into the 1960s, and the reverse discrimination lawsuit by Allan Bakke against the medical school at the University of California, Davis in the 1970s. She examines how the CIR, following the model in earlier civil rights cases such as Brown, has chosen its plaintiffs carefully in its broad attempt to reverse the 1978 holding by the U.S. Supreme Court in Bakke that allowed race to be one of several factors, but not the only factor, that institutions could consider in admissions.
Parker also examines how Michigan mounted an aggressive defense in Grutter, including soliciting research substantiating the education benefits of diversity, as well as found formal support from outside academe, including from General Motors and a group of retired military officers...