By Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
Public colleges and universities across the country are frequently faced with issues involving free speech activities on their campuses. Some campuses permit students and non-students to engage in free speech activities (such as gathering signatures on petitions or speaking with students about religious, political or social issues of interest) anywhere on campus without restriction. More often, campuses set limitations that apply to everyone or at least to non-students, such as requiring that speakers engage in speech activities in a designated free speech area or zone and to give prior notice of their intent to use the area.
The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights, and may become more frequent as elections approach. For example, on June 12, 2012, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all "demonstrations, picketing, and rallies" be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly apply to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (See decision here)
Showing posts with label Higher Education. Show all posts
Showing posts with label Higher Education. Show all posts
Wednesday, June 27, 2012
Tuesday, March 6, 2012
Community College Districts Must Take Note of Court Ruling on K-12 Categorically Funded Certificated Employees
By Aaron O'Donnell, Partner
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Thursday, December 15, 2011
U.S. Agencies Jointly Issue Guidelines on the Voluntary Use of Race to Achieve Diversity, but California Constitution’s Limits on Consideration of Race Still Apply
By Aaron O'Donnell, Partner
and Sharon Ormond, Senior Associate
Cerritos Office
On December 2, 2011, the U.S. Departments of Education (ED) and Justice (DOJ) jointly issued guidelines on the voluntary use of race to achieve diversity in postsecondary education and to achieve diversity and avoid racial isolation in elementary and secondary schools within the framework of Titles IV and VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and current case law. The guidance, which is presented in two documents, one for postsecondary institutions and one for K-12 schools, replaces August 2008 letters issued by ED’s Office for Civil Rights (OCR).
The guidance documents reflect the view of ED and DOJ that there is a compelling interest in achieving a diverse student body, and, in the context of K-12 education, avoiding racial isolation. Their intent is to address the degree of flexibility that educational institutions have to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet these compelling interests. As the Supreme Court has made clear, such steps can include taking account of the race of individual students in a narrowly tailored manner. The documents will no doubt prompt further discussion and debate of complex legal and policy issues, and are therefore likely to be of interest to many educators regardless of whether their institutions are currently contemplating the adoption of specific practices according to the guidelines. However, California’s public colleges, universities, school districts, and county offices of education must also continue to comply with provisions of the California Constitution that more strictly limit the consideration of race, among other factors, for purposes of achieving diversity.
and Sharon Ormond, Senior Associate
Cerritos Office
On December 2, 2011, the U.S. Departments of Education (ED) and Justice (DOJ) jointly issued guidelines on the voluntary use of race to achieve diversity in postsecondary education and to achieve diversity and avoid racial isolation in elementary and secondary schools within the framework of Titles IV and VI of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and current case law. The guidance, which is presented in two documents, one for postsecondary institutions and one for K-12 schools, replaces August 2008 letters issued by ED’s Office for Civil Rights (OCR).
The guidance documents reflect the view of ED and DOJ that there is a compelling interest in achieving a diverse student body, and, in the context of K-12 education, avoiding racial isolation. Their intent is to address the degree of flexibility that educational institutions have to take proactive steps, in a manner consistent with principles articulated in Supreme Court opinions, to meet these compelling interests. As the Supreme Court has made clear, such steps can include taking account of the race of individual students in a narrowly tailored manner. The documents will no doubt prompt further discussion and debate of complex legal and policy issues, and are therefore likely to be of interest to many educators regardless of whether their institutions are currently contemplating the adoption of specific practices according to the guidelines. However, California’s public colleges, universities, school districts, and county offices of education must also continue to comply with provisions of the California Constitution that more strictly limit the consideration of race, among other factors, for purposes of achieving diversity.
Tuesday, November 1, 2011
Community College and University Auxiliary Organizations Must Make Their Records Open to the Public
By Aaron O'Donnell, Partner
Sharon Ormond, Senior Associate
Cerritos Office
and Cathie Fields, Senior Associate
Irvine Office
Sharon Ormond, Senior Associate
Cerritos Office
and Cathie Fields, Senior Associate
Irvine Office
Effective January 1, 2012, SB 8 amends the higher-education provisions of the Education Code (72690 et seq.; 89913 et seq.; and 92950 et seq.) to require auxiliary organizations of the California Community Colleges, the California State University, and the University of California to comply with disclosure provisions essentially similar to the California Public Records Act, subject to certain exemptions unique to auxiliary organizations.
SB 8 requires records maintained by a CCC, CSU, or UC auxiliary organization to be made available to the public and requires the organization to follow the specified timelines and procedures for responding to public records requests similar to those of the PRA.
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