I.
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Current Issues: Americans with Disabilities
Act |
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A.
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Definition of
Disability |
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1.
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Eyeglass
wearing pilots with correctable vision held not disabled. Supreme Court
said, “if a person is taking measures to correct for, or mitigate, a
physical or mental impairment, the effects of those measures -- both
positive and negative -- must be taken into account when judging
whether that person is ‘substantially limited’ in a major life activity
and thus ‘disabled’ under that Act.” Sutton v. United Air Lines, Inc.
527 U.S. 471 (1999). Person whose blood pressure controlled by
medication not disabled. Murphy v. United Parcel Service, Inc., 527
U.S. 516 (1999). Extends to self-accommodation. Albertson’s, Inc. v.
Kirkinburg, 517 U.S. 516 (1999) (“no principled basis for
distinguishing between measures undertaken with artificial aids, like
medications and devices, and measures undertaken, whether consciously
or not, with the body’s own systems”). Popko v. Pennsylvania State
Univ., 84 F.Supp.2d 589 (M.D.Pa.2000)(on remand for further
consideration of whether plaintiff’s epileptic condition was a
“disability” in light of recent Supreme Court decisions. Pacella v.
Tufts Univ. School of Dental Medicine, 66 F. Supp.2d 234 (D.Mass.
1999)(as corrected vision does not substantially limit a major life
activity). Tangires v. The Johns Hopkins Hospital, 79 F.Supp.2d 587
(D.Md. 2000)(employee with asthma not disabled where asthma was
treatable with medication that she refused to take).
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2.
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ADD/ADHD
disabilities?
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B.
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Reasonable Accommodation
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1.
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Indefinite
unpaid leave not a reasonable accommodation. Lance v. University of
Tennessee, 60 F.Supp.2d 773 (E.D.Tenn. 1999).
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2.
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Plaintiff
permanently restricted to light duty work was no longer qualified for
custodial position with or without accommodation. Could not perform
functions of job. Scott v. University of Toledo, 2000 Ohio App. LEXIS
851 (Ohio Ct. App. 2000).
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3.
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Student
diagnosed with math learning disability failed to pass a required math
class and therefore failed to obtain elementary education degree;
university provided several accommodations but would not waive class or
accept a D grade. Pangburn v. Northern Kentucky University, 2000 U.S.
App. LEXIS 6413 (6th Cir. 2000).
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C.
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Documentation
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1.
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Student
has obligation to give college notice of disability and request
reasonable accommodation/academic adjustment. Notice and request must
be timely. Student must provide documentation.
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2.
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Documentation must show current
disability. Guckenberger v. Boston
University, 974 F.Supp.106 (D. Mass. 1997)(demands for documentation
must reflect medical expertise re: currency and age; distinction
between LD and ADD because of possibility of change in symptoms).
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3.
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Diagnostic
professional must be qualified. Standard in the field.
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4.
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Documentation must be complete. How
diagnosis was reached;
qualifications of diagnostician; how are major life activities
impacted; how disability affects academic difficulties; IEP may be
insufficient on its own; request for adjustment must be consistent with
documentation; if documentation is inadequate, institution must advise
student in a timely fashion.
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5.
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College
may conduct its own evaluation at its own expense.
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6.
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Academic
adjustment must be provided while the student is being evaluated.
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1.
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Process
for determining adjustments should be interactive.
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2.
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IDEA
Families. Need to prepare for differences in expectations that
students and parents may have based on their experience in public
school setting. Should provide notice and train those handling
orientation to refer to disability services coordinators.
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D.
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Access to Technology
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1.
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Use of
technology is exploding: 1/4 of classes use internet as part of
syllabus; use of email in classes up from 8% in 1996 to 44% in 1998.
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2.
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Qualified
disabled students must have equal access to the program. Section 504,
29 U.S.C. 794, 34 C.F.R. 104; ADA, 28 C.F.R. 36.303, 28 CFR 35.160.
Communication must be as effective. May consider alternatives as long
as access to the program is equal. May need to provide training.
Colleges must be proactive. See, Tyler v. City of Manhattan, 857
F.Supp. 800 (D.Kan. 1994).
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3.
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What is
access? facilities; computer workstations; materials, documentation and
support; training and tech support; maintenance and repair of
accessible features; course materials; on-line class discussion;
submission of assignments.
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4.
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Consider
accessibility in purchasing and leasing. Consider benefits of universal
designs.
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5.
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Provide
accessible technology in integrated setting.
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6.
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Includes
web design (recommendations from DO-IT; University of Washington).
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7.
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Web
Resources: “Bobby”, a website that can check other websites for
accessibility, www.cast.org/bobby; Equal Access to Software and
Information, www.rit.edu/~easi/>; Postsecondary Innovative
Transition and Technology, www.wri-edu.org/postitt/>; Alliance for
Technology Access, www.ataaccess.org/design.html.
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E.
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Testing
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1.
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See
provisions on testing students with disabilities in revised (December
1999) Standards of the Joint Committee on Testing (American
Psychological Association, National Council on Measurement in
Education, and the American Educational Research Association); Bartlett
v. New York State Board of Bar Examiners, 156 F.2d (2d Cir. 1998)
vacated and remanded, 119 S.Ct. 2388 (June 21, 1999) (being
reconsidered in light of Sutton case)(is a student with LD disabled
under ADA?).
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2.
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Accommodation must be provided so that
person can demonstrate his or
her aptitude and achievement, not the effect of the disability (except
where the functions impaired by the disability are the factors the test
purports to measure). Not required to waive or lower essential program
requirements or to fundamentally alter nature of program.
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3.
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Must be
well-reasoned decision. Wynn v. Tufts University of Medicine, 932 F.2d
19 (1st Cir. 1991) and 976 F.2d 791 (1st Cir. 1992) and Guckenberger v.
Boston University, 8 F. Supp. 2d 82 (D. Mass. 1998). Categorical
denials of extra time beyond pre-set limits probably not okay. Must
make individual determination.
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F.
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Psychological/mental Disabilities
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1.
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Dismissal
of student because of a concern that, as a result of the student’s
disability, the student might engage in conduct that poses a risk to
health or safety, special standards apply that are designed to balance
the legitimate concerns for safety with the goal of protecting disabled
students from unfounded fears and prejudice. Must be a “direct threat.”
School Board of Nassau County v. Arline, 480 U.S. 273 (1987). A “direct
threat” is a significant risk of causing substantial harm to the health
or safety of the student or others that cannot be eliminated or reduced
to an acceptable level through the provision of reasonable
accommodation. Individualized assessment. Institution must identify the
standards to be applied and give notice to the student that standard
not met. Must make decision on reliable information: objective evidence
and reasonable judgments relying on current medical knowledge. Doe v.
NYU, 666 F.2d 761 (2nd Cir. 1981). General reference: Thomas J.
Flygare, Students with Learning and Psychiatric Disabilities: New
Challenges for Colleges (NACUA Publication Series 2000).
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G.
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Access to Facilities
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1.
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Title III
of the ADA existing facilities approach is different from Title II and
Section 504. Obligation to remove architectural barriers if “readily
achievable.” Look at barriers not program. Use common sense.
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2.
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Internet
resource: U.S. DOJ, “Settlement Agreement Between the United States of
America and Duke University,” www.usdoj.gov/crt/ada/duke.htm
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II.
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Current Issues:
Employment Discrimination
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A.
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Training
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1.
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New
incentives provided by Supreme Court.
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a)
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Kolstad v. American Dental Association, 527 U.S. 526 (1999)
(employer prevention efforts relative to punitive damage claims)
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b)
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Faragher v. City of Boca Raton, 524 U.S. 775 and Burlington
Industries v. Ellerth, 524 U.S. 742 (1998)(affirmative defense requires
“employer exercised reasonable care to prevent and correct promptly any
sexually harassing behavior). Lower courts have applied this to
harassment on the basis of race, Allen v. Michigan Dept. of
Corrections, 165 F.3d 405 (6th Cir. 1999) and disability, Wallin v.
Minnesota Dept. of Corrections, 153 F.3d 681, 687-88 (8th Cir. 1998),
cert. denied 526 U.S. 1004 (1999).
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2.
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The federal
government has proposed amendments to the FAR that would impose
training on entities that receive federal grants and contracts. 64 Fed.
Reg. 37359 (July 9, 1999). Contractor qualifications to include
“workplace practices addressing matters such as training, worker
retention, safety programs and legal compliance.” See,
www.noblacklisting.org.
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3.
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Some states
also have training requirements. See, “The Emerging Law of Training,”
by G. Mathiason and M. deBernardo, Federal Lawyer 25, 26 (May 1998).
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4.
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Disheartening statistics published by
Tillinghast-Towers Perrin,
Under-Managed Risk: Employment Claims Drive Rising ELL Occurrences and
Costs: A Summary of Findings from the 1997 Educators Legal Liability
Coverage Survey (800-525-6741):
No training on sexual harassment offered by half of institutions
surveyed; on ADA by two thirds; on employee terminations by three
quarters. About 80% don’t train committees that make rank and tenure
decision, resolve grievances or conduct searches.
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5.
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Internet
resources:
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a)
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University of New
Mexico --www.unm.edu/~hrinfo/Eod/workshops/civilrightstrng.htm
linking to www.unm.edu/~hrinfo/civilrights/intro.htm.
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b)
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University of Washington -- www.washington.edu/admin/traindev/index.html.
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c)
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www.preventivepractices.com,
on-line sexual harassment course for faculty and other university
employees and students.
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B.
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ADR/Mandatory Arbitration
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1.
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Some
employers are choosing to require new employees, as a condition of
hiring, to waive their right to resolve employment disputes in a
judicial forum and to have all such disputes resolved through
arbitration. Some employers are also requiring current employees to
sign such waivers as a condition of promotion, receipt of salary
increases or to keep their jobs.
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2.
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Where
employees have entered such agreements but nevertheless sought to sue
under state or federal laws, employers have responded by filing motions
to compel arbitration. Most of these cases have been decided in favor
of the employers. The Supreme Court affirmed in Circuit City Stores v.
Adams, 121 S.Ct. 1302 (2001) that arbitration clauses in employment
contracts are enforcible and the Federal Arbitration Act applies.
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3.
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EEOC Policy
Statement on Mandatory Binding Arbitration of Employment Discrimination
Disputes as a Condition of Employment (July 10, 1997),
www.eeoc.gov/docs/mandarb.txt.
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4.
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Where
enforced, courts tend to agree on following:
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a)
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agreements must be
voluntary on part of employee;
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b)
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there is consideration
for the waiver;
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c)
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arbitration process
protects employee rights;
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d)
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Section 119 of the
Civil Rights Act of 1991 does not prohibit arbitration of claims
brought under Title VII, the ADEA or other federal civil rights laws.
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5.
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To increase
enforceability of arbitration clauses:
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a)
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binding on employer
and employee;
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b)
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use OWBPA waiver as a
model for waiver;
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c)
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provide for full range
of authorized remedies;
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d)
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require arbitrators to
be trained in employment discrimination law; and
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e)
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provide for limited
judicial review.
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C.
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Retaliation
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1.
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Employees
may bring retaliation claim regardless of validity of their underlying
discrimination claim but there will be no retaliation claim where no
reasonable person could have believed that a single minor incident
violated Title VII. Clark County School District v. Breeden, USSCt,
Docket No. 00-866 (2001)
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2.
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Cause of
action arises under separate section of Title VII, 42 U.S.C. §
2000e-3(a)(i)(opposition) (Martin v. Howard University, 1999 U.S. Dist.
Lexis 19516 (D.D.C 1999) and (ii)(participation). Also under ADA, ADEA,
FMLA, and Equal Pay Act.
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3.
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Exposure
may
be great.
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a)
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Jury awarded a former
university employee $1,500,000 in Starkes v. Florida Board of Regents,
No. 98-669-CIV-T-25B (M.D. Fla. 1999), after finding that university
discriminated against her on the basis of race and terminated her in
retaliation for filing charge with EEOC.
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b)
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Two professors awarded
$1,800,000 after a jury found that the university had subjected them to
changes of class schedules, charges of insubordination, and negative
performance evaluations following their claim of reverse
discrimination. Gentner v. Cheyney Univ., No. Civ. A. 94-7443, 1999 WL
820864 at *3 (E.D. Pa. October 14, 1999).
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4.
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Claim has
three elements: engaged in participation or opposition; suffered an
adverse employment action; and there is causal connection between
protected activity and the adverse action. Employer may rebut by
articulating a legitimate non-retaliatory reason for action (doesn’t
have to prove that it is the real reason). Employee then must show
reason is a pretext.
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5.
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Provision
in
a University collective bargaining agreement that required a choice
between internal grievance and EEOC charge was retaliatory on its face
under ADEA. EEOC v. Board of Governors of State Colleges and
Universities, 957 F.2d 424 (7th Cir. 1992), cert. denied, 506 U.S. 906
(1992).
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D.
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Uniform Guidelines on
Employee Selection Procedures
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1.
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The
Uniform
Guidelines have been adopted by the EEOC (29 C.F.R. 1607), the Civil
Service Commission, and the Departments of Labor (41 C.F.R. 60, Justice
(28 C.F.R. 50.14) and the Treasury. Apply in cases brought under Title
VII of the Civil Rights Act. These are not regulations and do not have
the force of law. Clady v. County of Los Angeles, 770 F.2d 1421 (9th
Cir. 1985) cert. denied, 475 U.S. 1109 (1986). See, also, Watson v.
Fort Worth Bank & Trust, 487 U.S. 977 (1988) (4/5ths rule is a
“rule of thumb”). But, there are rules on recordkeeping and reporting,
29 C.F.R. 1602, as amended by 56 Fed. Reg. 35, 753 (July 26, 1991).
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2.
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“Best
hiring
procedures” not required. Furnco Construction Corp. v. Waters, 438 U.S.
567 (1978).
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3.
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Anything
you
use (employment application, resume, background investigation, former
employer references, criminal records check) to determine whether or
not to hire a candidate is considered a selection instrument. This is
true whether the criterion is an objective test or a subjective method.
Each criterion used (not just the bottom line) can be examined for an
adverse impact. Connecticut v. Teal, 467 U.S. 440 (1982).
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4.
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Internet
References
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a)
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hr-guide.com/software
and www.acd.ccac.edu/hr/employment
statistics/disparate impact/analysis4.cgi
discriminatory impact analysis; utilization analysis
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b)
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humanresources.ucr.edu/hrunits/employment/RecruitInterSelectGuide.htm\
model campus procedures
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c)
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www.uniformguidelines.com
Questions and Answers on Guidelines and Labor Department Report on use
of tests and assessments.
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III.
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Current
Issues: Faculty/Institutional Relationships
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A.
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First Amendment/Harassment
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1.
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Cohen v.
San
Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996). (sexual
harassment policy unconstitutionally vague; did not provide professor
with notice that his conduct would be prohibited). See, Cohen v. San
Bernardino Valley College: The Scope of Academic Freedom Within the
Context of Sexual Harassment Claims and In-Class Speech, 25 Journal of
College & University Law 1 (1998).
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2.
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Sexual
harassment policies “must be narrowly drawn to address the specific
evil at hand.” Cohen, 92 F.3d at 971. See, Ohio State University Policy
discussed in Sexual Harassment on Campus: A Legal Compendium 373 (Elsa
Kircher Cole, ed., National Association of College and University
Attorneys, 3rd ed. 1997).
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3.
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Bonnell v.
Lorenzo, 241 F.3d 800 (6th Cir. 2001) (college professor was
disciplined for his gratuitous in-class use of the words "pussy,"
"cunt," and "fuck," which had given rise to a sexual harassment
complaint filed by one of the professor's students. Id. at 803. Because
Bonnell's offensive language was "not germane to the subject matter,"
the court concluded that he did "not have a constitutional right to use
[these terms] in a classroom setting." Id. at 820)
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B.
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Institutional vs.
Individual Academic Freedom
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1.
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Boring v.
Buncombe County Bd. of Education, 136 F.3d 364 (4th Cir. 1998), (held
that a high school teacher does not have a First Amendment right in the
secondary school's curriculum itself; choice of plays).
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2.
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Urofsky v.
Gilmore, 216 F.3d 401 (4th Cir., 2000)( to the extent the Constitution
recognizes any right of "academic freedom" above and beyond the First
Amendment rights to which every citizen is entitled, the right inheres
in the University, not in individual professors, and is not violated by
the terms of the Act.); see also Webb v. Ball State University, 167
F.3d 1146 (7th Cir., 1999).
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3.
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Edwards v.
California University of Penn., 156 F.3d 488 (3rd Cir. 1998), (freedom
to decide what is taught in the classroom and how it is taught belong
to the educational institution. "When the University determines the
content of the education it provides, it is the University speaking,
and we have permitted the government to regulate the content of what is
or is not expressed when it is the speaker or when it enlists private
entities to convey its own message.”).
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4.
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But see,
Hardy v. Jefferson County Community College, No. 99-00477, 6th Circuit,
August 15, 2001(As a public employee, Hardy must show that (1) he was
disciplined for speech that was directed toward an issue of public
concern, and (2) his interest in speaking as he did outweighed the
College's interest in regulating his speech. “Although Hardy's in-class
speech does not itself constitute pure public debate, it does relate to
matters of overwhelming public concern -- race, gender, and power
conflicts in our society.” a teacher's in-class speech deserves
constitutional protection. See Bonnell, 241 F.3d at 823 (holding that
"a professor's rights to academic freedom and freedom of expression are
paramount in the academic setting"); Minarcini v. Strongsville City
Sch. Dist., 541 F.2d 577, 582 (6th Cir. 1976) (holding that the "First
Amendment's protection of academic freedom" applies to teachers'
in-class discussions).).
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5.
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David M.
Rabban, Functional Analysis of "Individual" and "Institutional"
Academic Freedom Under the First Amendment, 53 Law & Contemp.
Probs. 227, 242-244 (1990).
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C.
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Hiring/references
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1.
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Hiring
practices should be position-specific, use valid and reliable selection
measures, involve trained search committees and managers.
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2.
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Failure to
screen potential employee adequately may lead to liability for
negligent hiring. Factors in determining reasonableness of inquiry.
Cramer v. Housing Opportunities Comm’n, 501 A.2d 35 (Md. 1985) (cost of
inquiry, ready availability of adverse info, type of position).
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3.
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Employers
generally have a qualified privilege to provide a post employment
reference unless they act with malice making defamatory statement with
intent to harm or provide information not relevant to prospective
employer’s employment decision. Many states have codified this common
law privilege. See, e.g., Va. Code Ann. § 8.01-46.1 (effective
July 1, 2000).
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D.
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Early Retirement
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1.
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Private
institutions must consider ERISA, federal income and social security
tax and Age Discrimination Act of 1967. Public plans not subject to
ERISA.
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2.
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Tenure
buyout payments may not be wages subject to FICA taxes. North Dakota
State University v. United States, No. A3-98-50 (D.N.D. 1999).
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3.
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Deferred
compensation questions under § 457(f) must be resolved.
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4.
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The Older
Workers Benefits Protection Act (OWBPA) enacted in 1990 amended the
ADEA by extending age discrimination coverage to employee benefits and
overturning Betts v. Public Employees Retirement System of Ohio, 492
U.S. 158 (1989)(court had held that bona fide benefit plans not meant
to evade the law exempt from ADEA). Also established strict
requirements for waivers of age discrimination claims. 29 U.S.C. §
623(f)(1), 29 C.F.R. 1625.22: writing; advice to consult with an
attorney; no waiver of later claims; consideration; 45 days to consider
any waiver attached to an exit incentive; each participant has 7 days
to revoke after signing/can’t be waived. Party asserting validity of
waiver must prove it complied with OWBPA and was knowing and voluntary.
29 U.S.C. § 626 (f)(3); Raczak v. Ameritech, 103 F.3d 1257 (6th
Cir. 1997).
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E.
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Revocation of Tenure
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1.
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In breach
of
contract actions where termination for cause challenged, one question
is whether jury should review facts of the alleged misconduct de novo.
In Murphy v. Duquesne University, 745 A.2d 1228 (Pa. Super. 1999), the
court held that judicial review of the president’s decision to revoke
tenure was limited to court’s review of whether there was substantial
evidence in the record of internal proceedings to support conclusion
that faculty member had engaged in substantial misconduct. See also,
Yackshaw v. John Carroll University Board of Trustees, 89 Ohio App.3d
237, 624 N.E.2d 225, 229 (1993). But see, McConnell v. Howard
University, 818 F.2d 58 (D.C.Cir. 1987).
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2.
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Resource:
See generally, Good Practice in Tenure Evaluation, A Joint Project of
the American Council on Education, the AAUP and United Educators (ACE
2000).
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F.
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Intellectual Property
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1.
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Key issue
is
whether the work for hire doctrine applies to faculty-authored
educational materials. Before the 1976 Copyright Act was passed,
codifying decades of case law that had evolved under the 1909 Act,
there was a “teacher” exception. Many think that the exception did not
survive the 1976 codification because Section 101 of a work for hire
makes no reference to it. Some courts have determined that the
exception no longer exists. The University of Colorado Foundation, Inc.
v. American Cyanamid, 880 F.Supp. 1387 (D.Colo. 1995)(finding a journal
article to be a work for hire) but see Weinstein v. University of
Illinois, 811 F.2d 1091 (7th Cir. 1987)( University policy which is
part of each professor’s contract provides for faculty ownership of
scholarly articles.)
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2.
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Internet
reference: www.utsystem.edu/ogc/intellectualproperty; authored by
Georgia Harper, Office of General Counsel, University of Texas System,
it is the best overall resource on copyright that exists.
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3.
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Patent
protection for teaching methods may be coming. Trademark Office has
granted patents for a business method. Business methods and teaching
methods are not readily distinguishable especially in an on-line
environment. Patentable subject matter; novelty and nonobviousness,
State Street Bank Trust v. Signet Financial Group, 149 F.3d 1368 (Fed.
Cir. 1998). Example of patent – Amazon one-click ordering.
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4.
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Conflicts
of
Interest and Commitment. Faculty conflict of interest and conflict of
commitment policies should be reviewed with on-line education in mind.
For example, a prominent professor at Harvard, Arthur Miller, supplied
videotaped lectures to a competing institution without Harvard’s
permission.
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5.
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TEACH Act.
Currently the Section 110 (2) exception in the Copyright Act for
classroom teaching that allows a work to be displayed in class does not
apply to distance education or on-line courses. Senate Bill S. 487, the
Technology Education and Copyright Harmonization Act would amend
Sections 110 and 112 of the Copyright Act to allow instructors to use
portions of copyrighted works in on-line courses without the need to
seek permission from copyright owners. The bill passed the Senate on
June 7th. On June 28, the House Judiciary Committee on Courts, Internet
and Intellectual Property approved the bill without amendments and sent
it on to full committee for consideration.
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6.
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Distance
learning policy development resources: Ownership of New Works at the
University: Unbundling of Rights and the Pursuit of Higher Learning
(CETUS), www.cetus.org/ownership.pdf; Developing a Distance Education
Policy for the 21st Century (ACE), www.acenet.edu.home.html;
Intellectual Property Policy and New Media Technologies: A Framework
for Policy Development at AAU Institutions (AAU),
www.tulane.edu/~aau/IPNewMediaReport.html; Who Owns the Rights to
Instructional Materials? Rethinking Intellectual Property at the
University (CIC), www.cic.uiuc.edu/resources/ip/copyrtconf99.html.
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7.
|
Faculty
interest in class notes. Does inclusion of notes from class sessions
for sale on-line violate the law?
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|
|
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a)
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Expression
of an idea not protected until fixed in a tangible medium; lecture from
notes not protected unless professor is reading verbatim or lecture is
being recorded by professor when delivered.
|
|
|
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b)
|
License to
take notes probably does not extend to commercial use.
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|
|
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c)
|
Even
student’s notes from lecture may be derivative work.
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|
|
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d)
|
Common law
copyright supplements federal statute. Williams v. Weiser, 273 Cal.
App. 2d 726 (1960).
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|
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e)
|
Internet
resources: “Teaching Law: The Legal Protection of Education and Its
Relevance for Online Notes Companies,“ Mathieu Deflam, www.sla.purdue.edu/people/soc/mdeflem/zteachlaw.htm,
“Ownership of Lectures: Commercial Notetaking in University Courses,” www.utsystem.edu/ogc/intellectualproperty/lectures.htm.
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IV.
|
Other
Current
Issues
|
|
A.
|
Access
to
Campus/Individuals and Outside Groups
|
|
|
1.
|
Physical
forum for expression of views must be open to all regardless of view.
Widmar v. Vincent, 454 U.S. 263 (1981).
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B.
|
11th
Amendment Immunity
|
|
|
1.
|
Congress
cannot abrogate the constitutional immunity of states from suit unless
the statute was passed under § 5 of the Fourteenth Amendment.
Seminole Tribe v. Florida, 517 U.S. 44 (1996). Congress’ powers under
§ 5 are limited to enforcing the actual substantive guarantees of
the 14th Amendment. City of Boerne v. Flores, 521 U.S. 507
(1997)(Congress must make specific findings that the substantive
guarantees of the 14th Amendment are being violated).
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|
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2.
|
1999
Trilogy: Florida Prepaid Postsecondary Educ. Expense Bd. v. College
Savings Bank, 119 S.Ct. 2199 (1999)(Flores standards must be applied in
determining whether attempt to abrogate was passed pursuant to §
5); College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense
Bd., 119 S.Ct. 2220 (1999)(express waiver required; not constructive or
implied); Alden v. Maine, 119 S.Ct. 2240 (1999)(principles equally
applicable to suits in state court).
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|
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3.
|
Kimel v.
Florida Board of Regents, 120 S.Ct. 631 (2000)(Senior university
faculty members alleged age discrimination related to alleged age-based
evaluation system and salary payments; sought back pay and punitive
damages from public university employers. Supreme Court said that
Congress violated the 11th Amendment in subjecting states to suits for
damages under the ADEA).
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4.
|
Cases only
apply to suits brought by individuals and not to suits brought by
federal government.
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|
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5.
|
Cases
pending and decided: ADA (Board of Trustees of University of Alabama v.
Garatt, 121 S.Ct. 955 (2001), bars individual recovery against states
and state agencies), Copyright Act, Environmental statutes, Equal Pay
Act (Varner v. Illinois State University, 226 F.3d 927 (7th Cir. 2000)
cert. filed 00-1277 (2001)), FMLA, IDEA, Rehabilitation Act, Title IX
(Litman v. GMU, constructive waiver through receipt of federal funds,
186 F.3d 544 (4th Cir. 1999) cert. denied, 120 S.Ct. 1220 (2000)),
Title VII (Cooper v. St. Cloud University, 226 F.3d 964(8th. Cir 2000),
Maitland v. University of Minnesota, No. 002192 (8th Cir.)).
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|
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6.
|
Issues for
the future: can Congress constitutionally require states to waive
sovereign immunity to participate in a federal program, receive federal
funds?
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V.
|
Legal
Resources
|
|
A.
|
General Resource,
especially for private colleges, Catholic University General Counsel’s
webpage: www.counsel.cua.edu/mainpage/index.htm.
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|
B.
|
Legal Links at www.nacua.org.
|
|
C.
|
Kaplin and Lee, The Law of
Higher Education.
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