Civil Law And Private Colleges: Who Rules The Roost?

Colleges and universities in the US are subject to many of the same laws as the rest of society, but they also have a unique legal landscape. There are three types of laws that affect the operation of colleges and universities: state laws, federal laws, and the Constitution. While public colleges are legally bound to respect the constitutional rights of their students, private colleges are not directly governed by the Constitution. However, private colleges are still subject to state and federal laws, including civil rights laws that prohibit discrimination. Private colleges that receive federal funding must also adhere to federal anti-discrimination laws such as Title IX. Additionally, private colleges are contractually bound to respect the promises they make to students, including any commitments to freedom of expression.

Private colleges and free speech

The First Amendment protects the rights of US citizens to free speech, expression, press, and assembly, as well as the right to petition the government. These rights extend to all individuals in the United States, regardless of religion, gender, race, citizenship, or sexual orientation.

However, the First Amendment applies only to the government and its agencies, and not to private organizations. This means that while public universities are required to comply with the First Amendment, private universities are not directly bound by it. Private universities are not government entities and so can impose stricter limitations on free speech.

Despite this, most private colleges and universities adhere to free speech principles and support academic freedom. This is partly because they often market themselves as bastions of free thought and expression, and so should be held to the standard they establish. Additionally, private colleges are contractually bound to respect the promises they make to students, and many promise freedom of expression in promotional materials and student conduct policies.

There are some exceptions to the rule that private colleges are exempt from the First Amendment. Private colleges and universities that accept government funding or are otherwise closely engaged with the government may be required to adhere more closely to the First Amendment. State governments may also pass statutes that require private universities to respect free speech rights as a matter of state law. For example, in California, the Leonard Law forbids private, non-religious universities from disciplining students for speech that is protected by the First Amendment or the California Constitution.

In an effort to balance the educational value of free speech with the value of providing a safe and supportive community for students, some colleges and universities have considered or adopted policies that regulate or prohibit speech deemed hateful or offensive. Private universities are able to impose greater restrictions as long as they do so within the bounds of their legal obligations to members of the campus community.

Private colleges and federal funding

Private colleges in the United States generally do not receive federal funding, but there are some ways they can acquire it. Private colleges can receive federal funding through research grants from government agencies such as the National Institutes of Health (NIH) or the National Science Foundation (NSF). They can also apply for federal funding for specific technological improvements, including school security grants and educational technology grants. Additionally, students attending private colleges can opt for federal student aid, which provides federal funding to the institution to cover tuition and other fees.

Private colleges that accept federal funding may be required to adhere more closely to the First Amendment and respect the constitutional rights of their students, including freedom of speech and expression. They must also adhere to federal anti-discrimination laws, such as Title IX, which prohibits discrimination on the basis of sex in any education program or activity receiving federal financial assistance.

While private colleges have traditionally been viewed as bastions of free thought and expression, they are not directly bound by the First Amendment, which limits only government action. However, if a private college promotes itself as a place that values free speech, it should be held to the same standard as a public institution. Private colleges are also contractually bound to respect the promises they make to students and are legally obligated to provide what they promise.

Private colleges that do not accept federal funding maintain greater autonomy over their admissions criteria, school policies, and academic programs. They have more flexibility in setting their own standards and are not restricted by federal government regulations. However, they face challenges in funding, particularly in maintaining a consistent source of donations and support systems from year to year.

Private colleges and discrimination

Private colleges and universities are not government entities and are therefore not required to uphold First Amendment protections in the same way that public colleges are. However, they are still bound by the civil laws that apply to them.

Private colleges are not entirely exempt from anti-discrimination laws, but they don't have to follow all the same laws as public colleges. There are three primary factors that determine whether a private college can be sued for discrimination:

• If the college receives any public funding: Private colleges that receive federal funding must adhere to federal anti-discrimination laws. For example, Title IX of the Education Amendments of 1972 prohibits discrimination based on sex in educational programs and activities that receive federal funding. This applies to both public and private colleges.
• If the college is religious: Religious private colleges can discriminate based on religion. They can refuse admission to students from different religious backgrounds and require admitted students to observe a religious code of conduct. However, they cannot discriminate based on race if they want to maintain their tax-exempt status.
• The type of discrimination that occurred: Private colleges can reject students for non-discriminatory reasons, but they may also be able to reject students for discriminatory reasons such as religion, race, or sex in certain situations. For example, single-gender private colleges are exempt from Title IX.

While private colleges have more leeway to impose restrictions on free speech, most adhere to free speech principles and support academic freedom. They are also contractually bound to respect the promises they make to students. If a private college advertises itself as a place where free speech is protected, it should be held to the same standard as a public college.

Private colleges and religious freedom

Religious freedom in higher education has been a major battleground for religious freedom since the beginning of the republic. While state laws and constitutions have always governed education, all schools are now subject to the First Amendment to the U.S. Constitution, which guarantees that the government "shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."

The First Amendment enshrines religious liberty as one of the most fundamental and cherished freedoms. It lays out religious liberty in two clauses: the Establishment Clause and the Free Exercise Clause. The Establishment Clause bars official governmental endorsement of or preference for any given belief system or lack thereof. The Free Exercise Clause restrains the government from restricting any closely held conviction, religious or otherwise.

Protections under the Free Exercise Clause are not exclusive to religious individuals or official doctrines. The closely held beliefs of citizens, even beliefs that are not rooted in official religious doctrine, are protected. Thus, believers and non-believers alike are protected from unreasonable government infringements upon their freedom of conscience.

A standard of "strict scrutiny" applies to any discrimination committed against an individual or group by the government based solely on their religious beliefs. Strict scrutiny means that to be constitutional, government action must advance a compelling state interest and be the least restrictive means for achieving that interest, as well as being narrowly tailored to achieve that interest. Most of the time, courts are unwilling to find that restrictions based on religious beliefs meet this demanding standard.

On a college campus, one major factor in determining students' religious liberty rights is whether the institution is public or private. As government institutions, public colleges and universities must obey the Constitution and ensure that students enjoy all rights found within it. This means that First Amendment rights are guaranteed to public college students. Public universities are also bound by state laws, which may provide students with additional rights and liberties. In this way, public colleges are required to provide access on equal terms to school facilities for all student organizations, including religious groups.

Private colleges and universities, on the other hand, are not directly bound by the First Amendment, which limits only government action. However, private colleges are bound by state law, federal statutes, and the rights promised to students in university documents. They are also contractually bound to respect the promises they make to students. Many institutions promise freedom of expression in university promotional materials and student conduct policies but then deliver selective censorship once the first tuition check is cashed. They may not engage in fraud or breach of contract.

Private institutions may impose stricter limitations on free speech. Still, most adhere to free speech principles and support academic freedom. Private institutions that receive federal funding must also adhere to federal anti-discrimination laws, such as Title IX.

There are some exceptions to this rule. Private colleges and universities that accept government funding or engage closely with the government may be required to adhere more closely to the First Amendment. State governments may also pass statutes requiring private universities to respect free speech rights as a matter of state law, even when the US Constitution imposes no such requirement. For example, California law applies First Amendment protections to both public and private universities.

In conclusion, while private colleges and universities have more flexibility regarding religious freedom and free speech, they are still bound by state law, federal statutes, and the rights promised to students in university documents. They must also refrain from fraud or breach of contract and are subject to public scrutiny and opinion, which can be powerful tools for change.

Private colleges and contractual obligations

Private colleges and universities are contractually bound to respect the promises they make to students. While students do not usually sign formal contracts, many courts have found that a school's bulletins, catalogs, handbooks, and regulations become part of its contract with enrolled students when the students receive those materials.

A contract is a legally binding promise to do something or provide something, usually in exchange for money or services. A breach of contract occurs when a party who has agreed to a contract does not fulfill that promise. Although students generally do not sign formal contracts, many courts have found that a school's bulletins, catalogs, handbooks, and regulations become part of its contract with enrolled students when the students receive those materials.

It is not easy to succeed with breach-of-contract lawsuits against schools. A court will probably throw out any case if, underneath any language about contracts, it's really based on a claim that the school didn't fulfill a promise to provide a quality education or instruction. But courts are more likely to allow suits where the students argue that the school broke a contractual promise to provide a specific service or course.

• Parents of an elementary school student alleged that a private school had broken its promise to provide adequate diagnostic testing and appropriate, individual reading instruction if their child developed reading problems.
• A former basketball player claimed that after a university recruited him, knowing he was unprepared for college, it didn't fulfill its promises to give him adequate tutoring so that he could truly participate in the academic program.
• A group of students alleged that a nursing school had promised its graduates would be qualified to take a licensing exam for registered nurses and would be able to enroll directly in a particular advanced nursing program, even though the school's program was not properly accredited.
• Students argued that a private vocational school broke its promise to provide English language instruction, modern equipment in good working condition, and computer training.
• A former student received full reimbursement for tuition in her breach-of-contract lawsuit against a business school that didn't provide a program leading to a transferable accounting degree, as it had promised.
• A student sued a for-profit technical college for breach of contract, claiming that the school hadn't met its contractual obligation to screen his criminal background before enrollment, to ensure that he would be eligible to complete required coursework at a hospital. A jury awarded the student more than $50,000 for tuition and lost income.

Some students have also been able to pursue lawsuits based on arguments that for-profit colleges or vocational schools convinced them to enroll by lying about various things, such as how long it would take to complete a course of study, whether the school would provide expert instruction in a particular subject, whether a student had the aptitude needed to complete a program, and whether graduates would find plenty of jobs with good salaries.

In addition, private colleges and universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselves as bastions of free thought and expression. Accordingly, private colleges and universities should be held to the standard that they themselves establish. If a private college advertises itself as a place where free speech is esteemed and protected, then it should be held to the same standard as a public institution.

Furthermore, private institutions that receive federal funding must also adhere to federal anti-discrimination laws, such as those applicable under Title IX.

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