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Student rights are those rights, such as civil, constitutional, contractual and consumer rights, which regulate student rights and freedoms and allow students to make use of their educational investment. These include such things as the right to free speech and association, to due process, equality, autonomy, safety and privacy, and accountability in contracts and advertising, which regulate the treatment of students by teachers and administrators. There is very little scholarship about student rights throughout the world. In general most countries have some kind of student rights (or rights that apply in the educational setting) enshrined in their laws and proceduralized by their court precedents. Some countries, like Romania, in the European Union, have comprehensive student bills of rights, which outline both rights and how they are to be proceduralized. Most countries, however, like the United States and Canada, do not have a cohesive bill of rights and students must use the courts to determine how rights precedents in one area apply in their own jurisdictions.

Canada

Canada, like the United States, has a number of laws and court precedents which regulate higher education and provide student rights. The Canadian Encyclopedia, which details issues of Canadian life and governance, states that in Canada "Basically two sorts of rights apply to students: substantive rights – the actual rights that students should enjoy – and procedural rights – methods by which students claim their rights. This article is concerned with students in public institutions, although those in private schools can claim rights under the common law and provincial education Acts."[1]

Canada does not yet have a national student Bill of Rights or comparable document. If and when one is put in place in Canada it is likely that this document will be called a Charter of Student Rights and Freedoms. The Canadian Charter of Rights and Freedoms is equivalent to the National Bill of Rights in the United States. The Canadian national student union or government is the Canadian Federation of Students and it has not put forth any such bill.

France

Privacy rights

In the AlBaho Case, a French criminal court found three senior academics at the École Supérieure de Physique et de Chimie Industrielles de la Ville de Paris (ICPSE) guilty of email espionage. This was the first incident where academic staff were found guilty of a criminal act as a result of a complaint made by a student – and where those staff members had the full support of their institution.

United States

In the US, students have many rights accorded by bills or laws (e.g. the Civil Rights Act and Higher Education Act) and executive presidential orders. These have been proceduralized by the courts to varying degrees. The US does not, however, have a national Student Bill of Rights and students rely on institutions to voluntarily provide this information. While some colleges are posting their own student bills, there is no legal requirement that they do so and no requirement that they post all legal rights.[2]

Institutional regulations

Decision making should not be arbitrary or capricious / random and, thus, interfere with fairness.[3][4][5][6][7] While this case concerned a private school, Healy v. Larsson (1974) found that what applied to private intuitions applied also to public.[8]

Institutions are required, contractually, to follow their own rules.[3][9][10][11][12] Institutional documents may also be considered binding implied-n-fact contracts. Goodman v. President and Trustees of Bowdoin College (2001) ruled that institutional documents are still contractual regardless if they have a disclaimer.

Students are protected from deviation from information advertised in bulletins or circulars.[13][14]

Students are protected from deviation from information advertised in regulations.[13][14]

Students are protected from deviation from information advertised in course catalogues.[13][14][15]

Students are protected from deviation from information advertised in student codes.[16][17]

Students are protected from deviation from information advertised in handbooks.[16][18]

Healy v. Larsson (1974) found that a student who completed degree requirements prescribed by an academic advisor was entitled to a degree on the basis that this was an implied contract.

Mississippi Medical Center v. Hughes (2000) determined that students have an implied right to a continuous contract during a period of continuous enrollment suggesting that students have the right to graduate so long as they fulfill the requirements as they were originally communicated.[16] Degree requirement changes are unacceptable.[16][19] Bruner v. Petersen (1997) found also that contractual protections do not apply in the event that a student, who has failed to meet requirements, is readmitted into a program.[16] The student may be required to meet additional requirements which support their success. This may also help avoid issues of discrimination.

Brody v. Finch University of Health Sciences Chicago Med. School (1998) determined that students have the right to notice of degree requirement changes.[16]

Verbal contracts are also binding.[20][21] The North Carolina Court of Appeals in Long v. University of North Carolina at Wilmington (1995) found, however, that verbal agreements must be made in an official capacity in order to be binding (Bowden, 2007). Dezick v. Umpqua Community College (1979) found a student was compensated because classes offered orally by the dean were not provided.

Academic advising

Verbal contracts are binding.[20][21][22] They must be made in an official capacity, however, to be binding.[8] Dezick v. Umpqua Community College (1979) found a student was compensated because classes offered orally by the dean were not provided. Healy v. Larsson (1974) found that a student who completed degree requirements prescribed by an academic advisor was entitled to a degree on the basis that this was an implied contract. An advisor should, thus, be considered an official source of information.

Mississippi Medical Center v. Hughes (2000) determined that students have an implied right to a continuous contract during a period of continuous enrollment suggesting that students have the right to graduate so long as they fulfill the requirements as they were originally communicated.[23] Degree requirement changes are unacceptable.[19][24] Bruner v. Petersen (1997) found also that contractual protections do not apply in the event that a student, who has failed to meet requirements, is readmitted into a program.[23] The student may be required to meet additional requirements which support their success. This may also help avoid issues of discrimination.

Brody v. Finch University of Health Sciences Chicago Med. School (1998) determined that students have the right to notice of degree requirement changes (Kaplan & Lee, 2011[23]). If a student, for instance, is absent for a semester and is not continuously enrolled they need to know if degree requirements have changed.

Decision making should not be arbitrary or capricious / random and, thus, interfere with fairness.[3][4][6][24][25] This is a form of discrimination. While this case concerned a private school, Healy v. Larsson (1974) found that what applied to private intuitions applied also to public.[8]

Recruitment

The 2008 Higher Education Opportunity Act (HOEA, 2008)[26] requires that institutions disclose institutional statistics on the Department of Education (DOE) website to allow students to make more informed educational decisions. Information required on the DOE website includes: tuition, fees, net price of attendance, tuition plans, and statistics including sex, ability, ethnic and transfer student ratios as well as ACT/SAT scores, degrees offered, enrolled, and awarded. Institutions are also required to disclose transfer credit policies and articulation agreements.

The 1990 Americans With Disabilities Act (ADA) and Section 504 of the 1973 Rehabilitation Act prohibits ability discrimination in academic recruitment. This includes ability discrimination in recruitment. Individuals designated with a disability by a medical professional, legally recognized with a disability[19][24][27] and deemed otherwise qualified are entitled to equal treatment and reasonable accommodations.[28][29] The Supreme Court defined Otherwise qualified as an individual who can perform the required tasks in spite of rather than except for their disability.[30][31]

Admissions

Title IX of the 1972 Higher Education Act Amendments[32] protect all sexes from pre-admission inquiries with regard to pregnancy, parental status, family or marital status. It can be seen that this act also protects against such inquiry regarding inter-sexed, transsexual, transgender or androgynous individuals.

The 1990 Americans With Disabilities Act (ADA)[33] and Section 504 of the 1973 Rehabilitation Act.[34] This includes ability discrimination in admissions. Individuals designated with a disability by a medical professional, legally recognized with a disability[19][24][27] and deemed otherwise qualified are entitled to equal treatment and reasonable accommodations in both educational and employment related activities.[28][29] The Supreme Court defined Otherwise qualified as an individual who can perform the required tasks in spite of rather than except for their disability.[30][31]

Individuals may not be discriminated against on the basis of their color in either undergraduate or graduate school admissions.[35][36]

Protection from discrimination in admissions[30][37] entails that students receive accommodations required to prove they are otherwise qualified, protection from unfair testing practices, testing accommodations for speech, manual and hearing disabilities and access to alternative testing offered in accessible facilities. Alternative testing must also be offered as frequently as are standard tests.[38] Where no alternative testing exists, institutions, however, are not responsible for accommodations.[38][39]

Educational tests which are biased in favor of one gender, may not be relied upon as the sole source of information decision making.[24][40]

Students' equality entails that individuals not be treated differently by individuals or systematically by an institution. Thus, testing policies which systematically discriminate, are unlawful according to the constitution. United States v. Fordice (1992) prohibited the use of ACT scores in Mississippi admissions, for instance, because the gap between ACT scores of white and black student was greater than the GPA gap which was not considered at all.[24]

When a school has engaged in racial discrimination in the past they are required by law to take race conscious affirmative action to correct it.[24][41][42][43]

White students are protected from racial discrimination at historic minority institutions.[24][44][45] Racial equality calls for the equal treatment of all individuals; it does not permit, however, lower admissions test requirements[35][46] or subjective judgments for racial minorities when there are objective standards in place for all applicants.[35][47]

There may be no segregation in the admissions process including subjective interviews[23][41][42][48][49] when there are objective standards in place for all applicants.[35][47]

Students are protected from the use of lower admissions test scores.[24][46]

Students are protected from the use of quotas which set aside seats for certain demographics.[35][41][42][49][50][51]

Students are protected from deviation from information advertised in registration materials.[24][52] This may be a binding implied-in-fact contract. Goodman v. President and Trustees of Bowdoin College (2001) ruled that institutional documents are still contractual regardless if they have a disclaimer.

Readmissions

Institutions must be careful with readmissions after students have failed to complete necessary program requirements. Readmission raises questions as to why individuals were removed from the program in the first place and whether future applicants may be admitted under like conditions. Discrimination may be alleged regarding both the initial removal and also in the case that other students are not readmitted under like circumstances. Kaplan & Lee and Lee (2011)[23] recommend that institutions, if they wish to avoid breach of contract and discrimination accusations, have an explicit readmission policy even if that policy denies readmission. If students take a voluntary leave of absence, institutions must have a valid reason to refuse readmission.[24][53]

Classroom rights

Students are protected from deviation from information advertised in class syllabi.[54][55][56] This may be a binding implied-n-fact contract. Goodman v. President and Trustees of Bowdoin College (2001) ruled that institutional documents are still contractual regardless if they have a disclaimer.

Students are entitled to receive instruction on advertised course content.[57][58] Institutions have the right to require coverage of designated course material by teachers[59][60][61][62] and faculty and students are generally protected if they adhere to syllabus guidelines.[54][55]

Students may expect teaching in conformity with the course level advertised.[11][15] Andre v. Pace University (1994) awarded damages on the grounds of negligent misrepresentation and breach of contract.[3]

Teachers must give reasonable attention to all stated course subjects.[63]

Students may have all advertised content covered in sufficient depth.[59][64]

Scallet v. Rosenblum (1996) found that "tight control over the curriculum was necessary to ensure uniformity across class sections".[65]

Students may be graded fairly and in accordance with criteria set forth by the course syllabuses and may be protected from the addition of new grading criteria.[54][56] Institutions have the responsibility of preserving quality in grade representations and comparability between classes and prevent grade inflation.[24][56] Teachers have the right, under the first amendment, to communicate their opinions regarding student grades,[59][66] but institutions are required to meet students implied contract rights to fair grading practices. Departments may change grades issued by teachers which are not in line with grading policies or are unfair or unreasonable.[66][67]

Students have the right to learn.[59][68][69][70][71] Teachers do not have free rein in the classroom. They must act within departmental requirements which ensure students' right to learn and must be considered effective.[59][72] Sweezy v. New Hampshire (1957)[70] found that teachers have the right to lecture. They do not have academic freedom under the law.[71] Any academic freedom rules are put in place by the school.

Students may expect protection from the misuse of time;[73] teachers may not waste students' time or use the class as a captive audience for views or lessons not related to the course.[56][73] Riggin v. Bd. of Trustees of Ball St. Univ. found that instructors may not "wast[e] the time of the students who have come there and paid money for a different purpose."

Students can expect effective teaching even if it requires departmental involvement in teaching and curriculum development.[74][75] Kozol (2005)[76] observed that the curriculum development may not be beneficial for all students since some students come from disadvantaged backgrounds where not every student has equitable opportunities to succeed in school. If there is departmental involvement in the students' learning then the departments need to acknowledge that students are different when they belong to a minority group. Ogbu (2004)[77] argued that for an effective teaching to take place, departments need to understand students at a group level as well as at an individual level because even students within the same minority groups are different. Given that students have the right to effective teaching, department involvement needs to understand cultural diversity and cultural differences before a curriculum development is considered.

Teachers have the right to regulated expression[59][64] but may not use their first amendment privileges punitively or discriminatorily[24][78] or in a way which prevents students from learning by ridiculing, proselytizing, harassment or use of unfair grading practices.[24][79]

The 1990 Americans With Disabilities Act[33] and Section 504 of the 1973 Rehabilitation Act[34] prohibit disability based discrimination in the classroom. Act This includes ability discrimination in learning[19][23][27] and deemed otherwise qualified are entitled to equal treatment and reasonable accommodations in both educational and employment related activities.[28][29] The Supreme Court defined 'Otherwise Qualified' as an individual who can perform the required tasks in spite of rather than except for their disability.[30][31]

Disabled students are entitled to equal access to classrooms facilities required to achieve a degree.[24][33][38][80][81]

Students Equality entails that individuals not be treated differently by individuals or systematically by an institution. Thus, testing policies which systematically discriminate, are unlawful according to the constitution. United States v. Fordice (1992) prohibited the use of ACT scores in Mississippi admissions, for instance, because the gap between ACT scores of white and black student was greater than the GPA gap which was not considered at all.[35]

Student group rights

Institutions have an obligation to provide equal opportunities in athletics, bands and clubs. This includes equal accommodation of interests and abilities for both sexes, provision of equipment and facility scheduling for such activities as games and practices, travel allowance and dorm room facilities. It includes also equal quality facilities including locker rooms, medical services, tutoring services, coaching and publicity.[82] To ensure that sufficient opportunities are made available for women, institutions are responsible for complying with Title IX in one of three ways. They must provide athletic opportunities proportionate to enrollment, prove that they are continually expanding opportunities for the underrepresented sex or accommodate the interests and abilities of the underrepresented sex.[83]

The 2008 Higher Education Opportunity Act[26] also requires the disclosure of athletics information including male and female undergraduate enrollment, number of teams and team statistics including the number of players, team operating expenses, recruitment, coach salaries, aid to teams and athletes and team revenue (HEOA, 2008). This information is required to ensure equality standards are met.

Residence halls

Good v. Associated Students Univ. of Washington (1975) found students have the right to have visitors and solicitors in their residence hall rooms.

Students are entitled to housing of equal quality and cost and to equal housing policies.[82]

Until the nineteen nineties gender segregation was permissible so long as institutional rationale for doing so was narrowly defined and justifiable.[24][84] This precedent was officially reversed, however, after the Supreme Court in United States v. Commonwealth of Virginia (1992) found that a woman mistakenly admitted to a men's military college was entitled to remain enrolled.[35][80]

Students with disabilities are also entitled to equal quality dormitories with living accommodations (Section 504 Rehabilitation Act, 1973; Kaplan & Lee, 2011.[24][85] All accommodations are currently free to the student even if the student has the financial means to pay for them.[35][86]

Students are entitled to equal treatment in housing regardless of age unless there is a narrowly defined goal which requires unequal treatment and policy is neutrally applied.[24][87][88][89] Prostrollo v. University of South Dakota (1974), for instance, found that the institution may require all single freshmen and sophomores to live on campus.[24] They did not discriminate between age groups.[35][88]

Piazzola v. Watkins (1971) established that students are not required to waive search and seizure rights as a condition of dormitory residence.[90] Random door sweeps are impermissible.[91][92]

Institutions may enter rooms in times of emergency, if they have proof of illegal activity or a threat to the educational environment.[93][94] Both these terms must be clearly stipulated in advance. Otherwise institutions must ask for permission to enter.[23][95][96] When dorms rooms are legally searched for narrowly defined reasons or officials are legally permitted to enter student rooms, students are not protected from property damage incurred in the search process[24][97] or action taken when evidence is in plain sight.[35][98]

Evidence found in student dorm rooms by institutional employees cannot be used in a court of law and institutions cannot allow police to conduct a search and seizure without warrant.[99][100][101] Students may not be punished for refusing a warrantless search from institutional authorities or police officers.[23][102] When students freely allow institutional officials to enter institutions can hold students accountable for evidence in plain sight.[35][98]

Privacy

Griswold v. Connecticut (1965) found that the third, fourth, and fifteen amendments together constitute an inalienable right to privacy. Students are extended the same privacy rights extended to the community at large.[35][98][103]

The 1971 Family Rights and Privacy Act[104] and the 2008 Higher Education Opportunity Act[105] protect student information. Students have the right to access their records, dispute record keeping and limited control over the release of documents to third parties.

FRPA and the HOEA require students sign a release before their student records will be provided to third parties (e.g.: to parents and employers tec.). This legislation does allow schools, however, to release information without student approval for the purpose of institutional audit, evaluation, or study, student aid consideration, institutional accreditation, compliance with legal subpoenas or juvenile justice system officers[104] or in order to comply with laws requiring identification of sex offenders on campus.[26] Institutions may also disclose information to student guardians if the student is declared a dependant for tax purposes (FERPA).

Under FERPA, schools may publish directory information, including the students name, address, phone number, date of birth, place of birth, awards, attendance dates or student ID number, unless students ask the school not to disclose it. The institution must inform students they are entitled to these rights.

Individuals may use pseudonyms online and are not required to identify themselves (Kaplan & Lee, 2011).[23][106] Drug testing Random National Collegiate Athletic Association (NCAA) urine testing is legal to protect athlete health, fair competition and opportunities to educate about drug abuse in sports.[107] Officials are allowed to watch athletes urinate.[108] This overturned an earlier ruling which prohibited urination watching.

Information rights

The 2008 Higher Education Opportunity Act[26] requires that institutions disclose institutional statistics on the Department of Education (DOE) website to allow students to make more informed educational decisions. Information required on the DOE website includes: tuition, fees, net price of attendance, tuition plans, and statistics including sex, ability, ethnic and transfer student ratios as well as ACT/SAT scores, degrees offered, enrolled, and awarded. Institutions are also required to disclose transfer credit policies and articulation agreements.

The 2008 HOEA[26] also requires institutions of higher education provide financial aid information disclosures, which essentially advertise the financial aid program, pre eligibility disclosures pertaining to the individual student, information differentiating federally insured or subsidized and private loans, preferred lender agreements, institutional rational for the establishment of preferred lender agreements and notice that schools are required to process any loan chosen by students.

According to the 2008 HOEA, financial aid information disclosures must include the average financial aid awarded per person, cost of tuition, fees, room, board, books, supplies and transport.[26]

According to the 2008 HOEA, financial aid information disclosures must include the amount of aid not requiring repayment, eligible loans, loan terms, net required repayment.[26]

Pre-eligibility disclosures must include notice of repayment, lender details, the principle amount, fees, interest rate, interest details, limits of borrowing, cumulative balance, estimated payment, frequency, repayment start date, minimum and maximum payments and details regarding deferment, forgiveness, consolidation and penalties.[26]

Institutions are also required to utilize standard financial terminology and standard dissemination of financial aid information, forms, procedures, data security and searchable financial aid databases to ensure that students can easily understand their contractual rights and obligations. Forms must be clear, succinct, easily readable and disability accessible.

The HOEA (2008) requires third party student loan lenders to disclose information concerning alternative federal loans, fixed and variable rates, limit adjustments, co-borrower requirements, maximum loans, rate, principle amount, interest accrual, total estimated repayment requirement, maximum monthly payment and deferral options.

The HOEA (2008) requires institutions of higher education to engage in financial aid eligibility awareness campaigning to make students aware of student aid and the realities of accepting it.

The 2008 Higher Education Opportunity Act requires the disclosure of athletics information including male and female undergraduate enrollment, number of teams and team statistics including the number of players, team operating expenses, recruitment, coach salaries, aid to teams and athletes and team revenue (HEOA, 2008). This information is required to ensure equality standards are met. This ensures that institutions are abiding by Title IX of the 1972 Higher Education Act Amendments which limits sexual discrimination and requires institutions to offer equal sport, club and opportunities.

Rosenberger v. Rector and Visitors of the University of Virginia (1995) found student fees must be allocated in a viewpoint neutral way. They cannot be based on religious, political or personal views (Henderickson; Good v. Associated Students University of Washington) and they cannot be levied as a punishment.[90][109] This suggests that students have a right to policy justification so that they know they are viewpoint neutral.

Students may expect protection from the misuse of time;[73] teachers may not waste students' time or use the class as a captive audience for views or lessons not related to the course.[56][73] Riggin v. Bd. of Trustees of Ball St. Univ. found that instructors may not "wast[e] the time of the students who have come there and paid money for a different purpose." This assumes that students are entitled to know course objectives and content.

Students may be graded fairly and in accordance with criteria set forth by the course syllabuses and may be protected from the addition of new grading criteria.[54][56] Institutions have the responsibility of preserving quality in grade representations and comparability between classes and prevent grade inflation.[24][56] This assumes that students have the right to a syllabus to ensure fair grading.

Discipline and dismissal

The 1990 Americans With Disabilities Act[110] and Section 504 of the 1973 Rehabilitation Act protect students against discrimination based on ability.[24][31][34][39][90][111] This includes ability discrimination in discipline and dismissal. Individuals shall be designated with a disability by a medical professional, legally recognized with a disability.[19][24][27]

Matthews v. Elderidge (1976) found when there is the possibility that one's interests will be deprived through procedural error, the value of additional safe guards and governmental interests, including monetary expenses, should be weighed.[3] Foster v. Board of Trustees of Butler County Community College (1991) found that students are not entitled to due process rights when appealing rejected admissions applications.[24] They are not yet students.

Due process is required when actions have the potential to resulting a property or monetary loss or loss of income or future income etc. This includes degree revocation[3][112] or dismissal. Students have a property interest in remaining at the institution and have protection form undue removal.[24][113]

Students also have a liberty right to protect themselves from defamation of character or a threat to their reputation. Federal district courts have, therefore, found that due process is required in cases involving charges of plagiarism, cheating[90][114] and falsification of research data.[3][112]

In disciplinary measures students are entitled to the provision of a definite charge.[11][90][115][116]

Students are entitled to a prompt notice of charges, e.g., ten days before the hearing.[90][117][118]

In cases involving expulsion or dismissal students are entitled to right to "expert" judgment with a judge who is empowered to expel.[90][117][118]

Students may inspect documents considered by institutional officials in disciplinary hearings.[90][117][118]

Students may stand as a witness and tell their story during disciplinary hearings.[117][118][119]

Students may record disciplinary hearings to ensure they are conducted in a legal fashion.[90][117][118]

Students can expect rulings in disciplinary hearings to be based solely on evidence presented at the hearing.[117][118][120] Students are also entitled to a hearing before a person or committee not involved in the dispute.[11]

Students may expect to receive a written account of findings from disciplinary hearings showing how decisions are in line with evidence.[90][117][118]

Board of Curators of the University of Missouri et al. v. Horowitz (1978) found that fairness means that decisions, a) may not be arbitrary or capricious, b) must provide equal treatment with regard to sex, religion or personal appearance etc. and c) must be determined in a careful and deliberate manner.

Hearings must be conducted before suspension or discipline unless there is a proven threat to danger, damage of property or academic disruption.[121]

Texas Lightsey v. King (1983) determined that due process requires that the outcomes of investigation be taken seriously. A student cannot, for instance, be dismissed for cheating after a hearing has found him not guilty.[3]

The American Bar Association (ABA) found that the need for a fair and just hearing also precludes the use of zero tolerance policies which ignore the circumstances surrounding an action.[3] An individual who commits a crime because they believe they are in danger may not be held accountable in the same way as an individual who conducts the same crime for self-interest.

Students accused of criminal acts including drug possession,[3][122] plagiarism, cheating[90][114] and falsification of research data or fraud, may have greater due process rights.

Students accused of criminal acts may cross-examine witnesses,[3][123] counsel.[3][124]

Students accused of criminal acts may have an open trial to ensure that it is conducted fairly,[3][123] counsel.[3][124]

In non-criminal hearings in the educational setting, schools may use a lesser standard evidence but where criminal matters are concerned they must have clear and convincing evidence.[3][123]

may be present.[3][124]

Students accused of criminal acts should have access to a higher appeals process.[125]

The Student & Administration Equality Act is proposed legislation in the North Carolina General Assembly (House Bill 843) would allow any student or student organization that is charged with a violation of conduct at a North Carolina state university the right to be represented by an attorney at any stage of the disciplinary process regarding the charge of misconduct.

Campus police

Students are protected from unwarranted search and seizure.[24][102] The fourth and fourteenth amendments protect from search and seizure without a warrant. They enshrine the individuals right to be “secure in their persons, houses, papers and effects.” Warrants must include person, place and specific items eligible for search and or seizure. Search and seizure rights do not apply to automobiles.

Individuals are protected from arrest by undeputized campus police[23][126] and illegal search and seizure if arrest is made.

Students are protected from entrapment by campus police as individuals are protected outside the educational environment.[35][127]

Piazzola v. Watkins (1971) established that students are not required to waive search and seizure rights as a condition of dormitory residence.[90] Random dorm sweeps are impermissible.[128]

Institutions may enter rooms in times of emergency, if they have proof of illegal activity or a threat to the educational environment.[93][94] Both these terms must be clearly stipulated in advance. Otherwise institutions must ask for permission to enter.[24][95][96] When dorms rooms are legally searched for narrowly defined reasons or officials are legally permitted to enter student rooms, students are not protected from property damage incurred in the search process[35][97] or action taken when evidence is in plain sight.[35][98]

Evidence found in student dorm rooms by institutional employees cannot be used in a court of law and institutions cannot allow police to conduct a search and seizure without warrant.[93][100][101] Students may not be punished for refusing a warrantless search from institutional authorities or police officers.[35][102] When students freely allow institutional officials to enter institutions can hold students accountable for evidence in plain sight.[35][98]

Safety rights

A number of state courts have also found that institutions have a responsibility to prevent or make efforts to limit injury on campus from dangerous property and criminal conditions[24][129][130][131] so long as injury is both foreseeable and preventable.

Knoll v. Board of Regents of the University of Nebraska (1999) found that institutions are responsible for ensuring the safety of facilities which are either under institutional jurisdiction or oversight. Institutions are, thus, responsible for institutionally owned dormitories and fraternities whether on campus or off campus and also for fraternities which may not be owned by the institution but are regulated by the institution. By taking on a regulatory role the institution also takes on this liability. Another state court found, that when students are not lawfully permitted to be on institutional property or in institutional buildings after hours, for instance, the institution is not responsible.[23][132] Where institutions willfully take responsibility for something like a fraternity or require students to abide by their rules they also take on the liability.

Students should be safe from for seeable crime especially in light of past reports of crime, if loitering or dangerous conditions have been made etc.[130][131] Institutions are required to take safety precautions including the monitoring of unauthorized personnel in dormitories, taking action against unauthorized personnel when they pose a threat to safety and ensuring adequate security measures are in place.

Students deserve protection from other students over whom the institution has oversight including voluntarily assumed jurisdiction e.g.: clubs, sororities, fraternities, teams.[130][133] This, for instance, includes protection from foreseeable or preventable fraternity hazing even if fraternities are not located on institutional property. The institution also has a responsibility to inform itself of safety risks existent in institutionally regulated programs (White, 2007). State courts have found that institutions are not responsible, however, for screening ex-convicts before admission,[24][134] 1987).

Constitutional rights

Students have the right to constitutional freedoms and protections in higher education. Prior to the 1960s institutions of higher education did not have to respect students constitutional rights but could act as a parent in the interest of the student (Nancy Thomas, 1991). In 1960 Shelton v. Turner found "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools" and in 1961 Dixon v. Alabam found that students were not required to give up, as a condition of admission, their constitutional rights and protections.[3][135] In 1969, Tinker v. Des Moines ruled that "students do not shed their constitutional rights... at the schoolhouse gate."

Free speech and association rights

Students retain their first amendment rights in institutions of higher education.[136] Papish v. Board of Curators of the Univ. of Missouri (1973) and Joyner v. Whiting (1973) found students may engage in speech that do not interfere with the rights of others or of the operation of the school.[137] Because schools are places of education they may regulate speech by time, manner and place as long as they provide free speech zones for students[90][138] as long as they are not used to limit expression.[90][139]

The Morse v. Frederick trial was a First Amendment student free speech case argued before the Supreme Court of the United States on March 19, 2007. The case involves Joseph Frederick, a then 18-year-old high school senior in Juneau, Alaska, 24 at the time of the decision, who was suspended for 10 days after displaying a "Bong Hits 4 Jesus" banner across the street from his high school during the Winter Olympics Torch Relay in 2002.[140]

The first amendment protects religious, indecent speech and profane hand gestures including the middle finger.[3][90][141][142][143][144][145][146][excessive citations] Texas v. Johnson (1989) found that “[i]f there is a bedrock principle underlying the first amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. The first amendment does not recognize exceptions for bigotry, racism, and religious intolerance or ideas or matters some may deem trivial, vulgar or profane.”

Clothing, armbands, newspaper editorials and demonstrations have all been found legal forms of free speech.[147][148]

The first amendment covers internet communications.[23][149][150][151] On forums designated by the institution as public forums or commonly used as public forums, students may express themselves without content regulation or removal.[23][150] Online Policy Group v. Diebold, Inc., 2004 Regulation may take place to prevent illegal activities.[35][149]

Equality rights

Students are protected from discrimination based on sex in any program or activity receiving federal funding except military, fraternity, sorority organizations.[24][83][152][153]

Sexual harassment is considered a form of sex discrimination under Title IV of the 1964 Civil Rights Act[35][154][155][156] and applies to all federal programs and activities. Sexual harassment has been prohibited in educational settings[24][157][158] and applies also to both opposite and same sex harassment by students.[159][160]

Institutions have an obligation to provide equal opportunities in athletics, bands and clubs. This includes equal accommodation of interests and abilities for both sexes, provision of equipment and facility scheduling for such activities as games and practices, travel allowance and dorm room facilities. It includes also equal quality facilities including locker rooms, medical services, tutoring services, coaching and publicity.[82] To ensure that sufficient opportunities are made available for women, institutions are responsible for complying with Title IX in one of three ways. They must provide athletic opportunities proportionate to enrollment, prove that they are continually expanding opportunities for the underrepresented sex or accommodate the interests and abilities of the underrepresented sex.[83]

The 2008 Higher Education Opportunity Act also requires the disclosure of athletics information including male and female undergraduate enrollment, number of teams and team statistics including the number of players, team operating expenses, recruitment, coach salaries, aid to teams and athletes and team revenue.[105] This information is required to ensure equality standards are met.

The 1990 Americans With Disabilities Act[33] and Section 504 of the 1973 Rehabilitation Act[34] prohibits ability discrimination in higher education.[24][31][39][90][111] This includes ability discrimination in facility use. Individuals designated with a disability by a medical professional, legally recognized with a disability[19][24][27] and deemed otherwise qualified are entitled to equal treatment and reasonable accommodations in both educational and employment related activities.[28][29] The Supreme Court defined Otherwise qualified as an individual who can perform the required tasks in spite of rather than except for their disability.[30][31]

The 1972 Equal Educational Opportunity Act protects students equal rights to educational opportunity regardless of race and the 1965 Lyndon B. Johnson Executive Order 11246 and the 1964 Civil Rights Act require equal access to employment opportunities regardless of race.[35][153][161][162]

Students are protected from racial segregation which compromises access to quality education.[23][35][163][164][165]

All federal employers or federal contractors are required to take affirmative action[166] to help counteract the effects of historical discrimination. They must create goals, timetables, action plans, budgets and reporting systems to ensure that marginalized populations are given equal employment opportunities. Regulations must also be posted in conspicuous places easily available to all staff and potential employees.[167]

Diversity is defined in much broader terms than race. Grutter v. Bollinger (2003)[50] found a “broad range of qualities and experiences that may be considered valuable contributions” and “a wide variety of characteristics besides race and ethnicity.” Members of the majority are also protected from reverse discrimination.[41][50][51][168] Race neutral affirmative action policies must make exceptions on an individual basis and may not discriminate based on race or color.[41][50][51][168]

Individuals have the right to equal treatment regardless of national origin in institutions of higher education (HEA, 1965) so long as they are citizens or resident aliens of the United States.[35][169] The 1986 Immigration and Reform Control Act also prohibits discrimination based on citizenship. Institutions have the right to discriminate based on national origin so long as objectives are both narrowly defined and neutrally applied.[35][170] It is, thus, permissible to require non-resident aliens who are legally present in the United States to have health insurance for instance.

Age discrimination in federally funded programs is prohibited by the 1975 Age Discrimination Act.[171] This act builds on the 1967 Age Discrimination in Employment Act.[89][172][173][174] It provides protection from unequal treatment between people of different ages from any explicit or implied distinctions which effect the benefits of participation.

Gay Activists Alliance v. Board of Regents of University of Oklahoma (1981) found student groups are entitled to equal and unbiased recognition. Recognition includes the unbiased allocation of facility and equipment resources except when there is proof that a student group does not maintain reasonable housekeeping or poses a threat of danger, disruption or criminal action.[119][175]

Autonomy rights to free choice (26th amendment)

Healey v. James (1972)[176] found students have the right to self-determination. “Students—who, by reason of the 26th Amendment, become eligible to vote when 18 years of age—are adults who are members of the college or university community. Their interests and concerns are often quite different from those of the faculty. They often have values, views, and ideologies that are at war with the ones which the college has traditionally espoused or indoctrinated.[176] Bradshaw v. Rawlings (1979) found that "adult students now demand and receive expanded rights of privacy in their college life".[177]

Contract rights

Carr v. St. Johns University (1962) and Healey v. Larsson (1971, 1974) established that students and institutions of higher education formed a contractual relationship. Institutions of higher education are responsible to ensure that contracts, including those implied and verbal, are fair,[3][4] in good faith[24][178] and not unconscionable.[35][179]

Students are protected from deviation from information advertised in the following documents: registration materials, manuals,[24][52] course catalogues,[15][180] bulletins, circulars, regulations,[20] Ross v. Creighton University class syllabi,[54][55][56] student codes,[17][35] and handbooks.[18][35] These documents may be binding implied-n-fact contracts. Goodman v. President and Trustees of Bowdoin College (2001) ruled that institutional documents are still contractual regardless if they have a disclaimer. This decision found that "even though the college had reserved the right to change the student handbook unilaterally and without notice, this reservation of rights did not defeat the contractual nature of the student handbook."

Ross v. Creighton University found that verbal contracts are binding.[21][181] The North Carolina Court of Appeals in Long v. University of North Carolina at Wilmington (1995) found, however, that verbal agreements must be made in an official capacity in order to be binding.[8] Dezick v. Umpqua Community College (1979) found a student was compensated because classes offered orally by the dean were not provided. Healy v. Larsson (1974) found that a student who completed degree requirements prescribed by an academic advisor was entitled to a degree on the basis that this was an implied contract. An advisor should, thus, be considered an official source of information.

Consumer rights

John F. Kennedy's 1962 Consumer Bill of Rights, which is not a legal document, asserts that consumers have the right to consumer safety, information preventing fraud, deceit and informed choice, to choose from multiple alternative options and the right to complaint, to be heard and addressed. A number of these principles are enshrined in the law of higher education.

Johnson v. Schmitz (2000) found in a federal district court that a PhD committee established for the sole purpose of advising the student had an obligation to advise the student in his best interest.[24] This is a limited fiduciary right.

Bradshaw v. Rawlings (1979) reiterated that where a special relationship is established, courts may impose a duty upon an institution or individual to ensure the care of others. Duty is defined here “as an obligation to which the law will give recognition in order to require one person to conform to a particular standard of conduct with respect to another person.” Institutions have a duty of care to ensure the safety of students while respecting their personal autonomy. Mullins v. Pine Manor found that "[t]he fact that a college need not police the morals of its resident students... does not entitle it to abandon any effort to ensure their physical safety”.[182]

Dixon v. Alabama (1961) determined that when students' constitutional rights are not upheld, students are eligible to sue for damages in a court of law for monetary or material damages.[24][35][38][89][183][184] Individuals may also file complaints regarding discrimination with the federal Office of Civil Rights (OCR).[35][171][185]

A number of state courts have also found that institutions have a responsibility to prevent or make efforts to limit injury on campus from dangerous property and criminal conditions[24][129][130][131] so long as injury is both foreseeable and preventable.

Knoll v. Board of Regents of the University of Nebraska (1999) found that institutions are responsible for ensuring the safety of facilities which are either under institutional jurisdiction or oversight. Institutions are, thus, responsible for institutionally owned dormitories and fraternities whether on campus or off campus and also for fraternities which may not be owned by the institution but are regulated by the institution. By taking on a regulatory role the institution also takes on this liability. Another state court found, that when students are not lawfully permitted to be on institutional property or in institutional buildings after hours, for instance, the institution is not responsible.[35][132]

Students should be safe from for seeable crime especially in light of past reports of crime, loitering or dangerous conditions.[130][131] Institutions are required to take safety precautions including the monitoring of unauthorized personnel in dormitories, taking action against unauthorized personnel when they pose a threat to safety and ensuring adequate security measures are in place.

Students deserve protection from other students over whom the institution has oversight including voluntarily assumed jurisdiction e.g.: clubs, sororities, fraternities, teams.[130][133] This, for instance, includes protection from foreseeable or preventable fraternity hazing even if fraternities are not located on institutional property. The institution also has a responsibility to inform itself of safety risks existent in institutionally regulated programs.[130] State courts have found that institutions are not responsible, however, for screening exconvicts before admission.[35][186]

Employment rights

Students are protected from discrimination based on sex in any program or activity receiving federal funding except military, fraternity, sorority organizations. There are protections for both public and private employment.[24][35][83][152][153] All employment opportunities must be merit based.[82][187]

All sexes have the right to equal pay for equal work performed in the workplace in institutions of higher education. This would include student employment.[82][187] This may suggest that transgender people are also entitled to equal pay in the workplace.

Women do not have to go on mandatory pregnancy leave before birth, and the right to doctor prescribed leave during pregnancy.[188]

Sexual harassment is prohibited in both educational and workplace settings[24][157][158] and applies also to both opposite and same sex harassment by employees.[158][160][189]

The 1997 Department of Education and Office of Civil Rights Sexual Harassment Guidelines find also that institutions are liable for incidences wherein the institution was aware or "should have been aware" of sexual harassment and took no immediate action.[190][191] The majority of federal court cases involving educational institutions prohibit the maintenance of conditions which allow harassment by other students to continue.[35][154][192][193]

Ability discrimination in federally funded and private programs and activities is prohibited under the 1990 Americans With Disabilities Act (ADA) and Section 504 of the 1973 Rehabilitation Act.[31][35][39][90][111] Individuals designated with a disability by a medical professional, legally recognized with a disability[19][27][35] and deemed otherwise qualified are entitled to equal treatment and reasonable accommodations.[28][29] The Supreme Court defined Otherwise qualified as an individual who can perform the required tasks in spite of rather than except for their disability.[30][31]

The 1990 Americans With Disabilities Act[33] and Section 504 of the 1973 Rehabilitation Act.[34] This includes ability discrimination in recruitment. Individuals designated with a disability by a medical professional, legally recognized with a disability.[19][24][27]

The 1990 Americans With Disabilities Act[33] and Section 504 of the 1973 Rehabilitation Act[34] in discipline and dismissal.[31][35][39][90][111]

Age discrimination in federally funded programs is prohibited by the 1975 Age Discrimination Act.[171] This act builds on the 1967 Age Discrimination in Employment Act.[172][194] It provides protection from unequal treatment between people of different ages from any explicit or implied distinctions which effect the benefits of participation.

Executive Order 11246[167] expanded upon the 1953 Dwight D. Eisenhower Executive Order 10479,[195] which established an anti-discrimination committee to oversee governmental contracting. The 1967 Lyndon B. Johnson Executive Order 11375[196] also requires all facets of federal employment or federally contracted employment be regulated based on merit – this includes institutions of higher education.

Individuals have the right to equal treatment regardless of national origin in employment settings[166][197] so long as they are citizens or resident aliens of the United States.[24][169] The 1986 Immigration and Reform Control Act also prohibits discrimination based on citizenship.

State level rights

In addition to the United States Constitution granting Freedom of Expression Rights to public school students, some state constitutions afford greater rights to public school students than those granted by the United States Constitution. For example, Massachusetts General Laws Chapter 71, sec. 82 grants broader rights to public secondary school schools regarding Rights of Students to Freedom of Expression.

In Massachusetts, for instance, k-12 students are entitled to freedom of expression through speech, symbols, writing, publishing and peaceful assembly on school grounds. The Public secondary school legislation entitled "right of students to freedom of expression; limitations; definitions"[198] says students have: "The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school. Freedom of expression shall include without limitation, the rights and responsibilities of students, collectively and individually, (a) to express their views through speech and symbols, (b) to write, publish and disseminate their views, (c) to assemble peaceably on school property for the purpose of expressing their opinions. Any assembly planned by students during regularly scheduled school hours shall be held only at a time and place approved in advance by the school principal or his designee." The result is students in the public secondary schools in Massachusetts are only held to the “Tinker” standard regarding Freedom of Expression.

European Union

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Romania

Romania is the country with the greatest student rights legislation currently in place. In 2011 the National Alliance of Student Organizations in Romania, which is also part of the European Student Union, worked with the Romanian National Government to bring into law the Romanian National Student Code of Rights and Responsibilities. This document provides Romanian students with roughly a hundred theoretical and procedural rights necessary to ensure theoretical rights are fulfilled. This document includes the following rights:[199]

Educational package rights

Contract rights

Equitability rights

Accountability and quality assurance rights

Due process rights

Information accessibility rights

The student rights movement

Students in both Europe and North America began calling for the expansion of civil rights and student rights during the Vietnam War era. They established legal rights by forming student unions and lobbying for institutional policies (thus, changing the cultural treatment of students), lobbying for legislative change on state and national levels and circulating petitions for the creation of national student rights bills. In America, for instance, students won the right to retain their civil rights in institutions of higher education.[201] In Europe, this movement has been explosive. Students have banded together and formed unions in individual institutions, at the state and national levels and eventually at the continental level as the European Student Union.[202] They have been instrumental in lobbying for rights in individual countries and in the EU in general. In 2011, for instance, Romania put forth an extensive national student bill of rights providing Romanian students with a hundred rights assembled in a clear and easy to access document.[202] Europe has also set forth legislation stipulating the rights of EU students studying in other EU countries.

European students have used the tactics established during the global labour movement of the eighteen and nineteen hundreds to gain labour or work place standards. They have unionized, stated their demands both verbally and in writing (sometimes in the form of a proposed student bill of rights), publicized their message and gone on strike.[203] During the labor movement, workers in the United States, for example, won the right to a 40-hour work week, to a minimum wage, to equal pay for equal work, to be paid on time, to contract rights, for safety standards, a complaint filing process etc.[204] Students have, likewise, demanded that these regulations as well as civil, constitutional, contract and consumer rights, which regulate other industries, be applied to higher education.

The European student movement and the United States movement differ in a number of ways. These differences may be a factor in determining why European Students have been more successful in obtaining legally recognized student rights, from the right to access free education to the right to move and study freely from one EU country to the next, to the right to exercise their national legal rights in institutions of higher education.

Differences between European and United States student movements

The European Student Union ESU mandate requires the ESU to determine the demands of students and to convey them to legislators. The United States Student Association USSA also has a mandate to amplify the student voice in legal decision making but it does not stipulate how it will determine the student voice or ensure that it is representative of the students themselves. The ESU focuses on gathering input from students across the nation, creates a student bill of rights enabling students to critique it, proposes legislation to achieve these rights at both the state and continental level and then creates information resources so students know their rights.[205] The USSA, determines its objectives through the USSA membership. USSA does not seem to conduct research across the nation or to state student objectives on their website so students can express a desire to add or delete from this list. If the USSA does conduct research they do not show this on their website, do not have a search function on the website and do not publish this information for students.

  • Currently, the ESU mandate is to "promote the educational, social, economic and cultural interests of students", to "represent, defend and strengthen students’ educational, democratic and political and social rights and "represent and promote the[m] ... at the European [continental] level towards all relevant bodies and in particular the European Union, Bologna Follow Up Group, Council of Europe and UNESCO."[205] The ESU will accomplish this by "conducting research", "campaigns", "conferences", "trainings", "partnership projects", "providing information", and creating "publications" for "students, policy-makers and higher education professionals."
  • The ASSU's mandate is to "develop[] current and future leaders and amplif[y] the student voice at the local, state, and national levels by mobilizing grassroots power to win concrete victories on student issues. The United States Student Association Foundation ensures the pipeline of effective student leadership by facilitating education, training and other development opportunities at national, state, and local levels in advocating for issues that affect students." The mission statement does not say how they intend to do these things but it seems from the website that they hold grass roots lobbying, student conferences and electoral training, and propose bills to the US Senate.

The ESU clearly states student demands through the nation and through the EU. They have compiled these demands into a student bill of rights, referred to as the 2008 Student Rights Charter. This document is not legally binding but it is a clear representation of all student demands. It helps students, institutions and governments understand what students are demanding[202] and also helps student unions, in individual institutions, lobby for rights which help change the culture and treatment of students on a local level. The ESU has democratically created a proposed student bill of rights they want accepted in legislation at a national and continental level. These demands include: access to higher education, to student involvement in institutional governance, extracurricular support and curricular quality standards. Each right has been broken down into more detailed demands required to achieve these rights. While student associations in America are pushing for this, there has been no centralized effort through the national student association.

USSA Legislative initiatives have included student debt forgiveness, enabling undocumented immigrant students to attend college, allocating more governmental money toward institutions and students but again these objectives seem to be created by USSA members without national research on the student voice. There is no way to search their website to determine if they conduct research to gather input form students across the nation.

The European student movement and the United States movement also differ on a local institutional level. In Europe most institutional student organizations are referred to as student unions which suggests that they are engaged in lobbying for student rights. In America these are referred to as Student Governments or Student Associations and the focus is more on learning the democratic process. The problem is, however, that most student governments only have about 20-25% representation in the Academic Senate or institutional decision making body and far less experience in democratic processes than other institutional representatives. Student governments focus on teaching students how to be leaders and participate in democracy where as unions focus more on determining the student voice and achieving student rights through lobbying.

See also

References

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  200. ^ "Archived copy" (PDF). Archived from the original (PDF) on 2014-05-08. Retrieved 2012-12-18.((cite web)): CS1 maint: archived copy as title (link)
  201. ^ Dixon v. Alabama 1961
  202. ^ a b c 2008 Students' Rights Charter Archived 2012-09-26 at the Wayback Machine
  203. ^ Beverly Silver: Forces of Labor. Worker's Movements and Globalization since 1870, Cambridge University Press, 2003, ISBN 978-0-521-52077-5
  204. ^ Labor and Employment laws | LII / Legal Information Institute
  205. ^ a b About Us

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