Commentary - UNIVERSITIES AND OTHER INSTITUTIONS OF HIGHER EDUCATION
Maurice C. Daniels & Cameron Van Patterson, (Re Considering Race in the Desegregation of Higher Education, 46 Ga. L. Rev. 521 (2012). This article discusses the desegregation of higher education institutions, and specifically the struggles faced by the University of Georgia. The article focuses on the change in case law from remedying race-based discrimination with the use of affirmative action plans to a focus on diversity. The author also discusses the trend toward "colorblind" social policies as Federal Courts are beginning to suggest that race equality is no longer a compelling state interest.
Michael A. Olivas, Governing Badly: Theory and Practice of Bad ideas in College Decision Making, 87 Ind. L.J. 951 (2012). This article explores poor policy making decisions on the part of universities. In evaluating examples of what are believed to be poor policy decisions, the article explains how these decisions remain internalized within the schools, allowing for very little "academic common law" to correct errors or overturn bad decisions. In addition, the author explores theoretical approaches to understanding the failures caused by poor decisionmaking in this context and legal standards for correcting the decisions.
Mary Margaret Penrose, Tattoos, Tickets, and Other Tawdry Behavior: How Universities Use Federal Law to Hide Their Scandals, 33 Cardozo L. Rev. 1555 (2012). This article discusses how universities and their athletic programs rely on the Family Education Rights and Privacy Act (FERPA) to keep from disclosing student-athlete misbehaviors, which shed negative light on these universities. The author explores the recent case decisions and four particular case studies to show that universities misuse the FERPA defense by claiming information sought by outsiders to be private student education records. The author concludes with steps Congress can take to prevent universities from relying on FERPA to keep misbehavior and corruption secret, which include a limited definition of "education records," reciprocity among documents, banning advance waivers, and a penalty scheme.
Bryan R. Lemons, Public Education and Student Privacy: Application of the Fourth Amendment to Dormitories at Public Colleges and Universities, 2012 BYU Educ. & L.J. 31. This article discusses how Resident Assistants and other university officials must comply with Fourth Amendment requirements when conducting searches of dormitory rooms. The author analyzes several cases in which universities provide general provisions to search dormitory rooms for health and safety. These provisions do not waive students' constitutional rights. The article concludes that students do have a reasonable expectation of privacy. Just as police officers must follow procedures and meet certain requirements when seeking to search apartments and homes, college and university officials must meet the same criteria in searches of dormitories.
Paul Finkelman, Breaking the Back of Segregation: Why Sweatt Matters, 36 Thurgood Marshall L. Rev. 7 (2010). The author explains the history preceding the revolutionary Supreme Court decision in Sweatt v. Painter, which led to the integration of southern institutions of higher education. This article starts with the infamous "separate but equal" Supreme Court decision in Plessy v. Ferguson and then moves to the rule of Jim Crow laws in order to set the stage for higher education prior to Sweatt. The Court held in Sweatt that institutions of higher education created solely for black students were not "separate but equal" and must be integrated. This decision was innovative because it overhauled segregation in education years before the Supreme Court decided Brown v. Board of Education.
Gabriel J. Chin, Sweatt v. Painter and Undocumented College Students in Texas, 36 Thurgood Marshall L. Rev. 39 (2010). This article explains the Supreme Court's rationale in deciding Sweatt v. Painter, which invalidated segregation in higher education. …