May 23, 2013 – Higher education litigation has proliferated in recent years over weighty constitutional issues such as free speech and admission policies as well as more mundane matters of grade disputes and post-graduation employment expectations. The litigation is often expensive and contentious, and the repercussions for the institutions can be severe. In his 14th book, University of Houston Law Center Professor Michael A. Olivas examines more than 120 higher education cases that made their way to the U.S. Supreme Court during the past 50 years, and delves deeper into six that didn't make it that far, to see what sort of legal patterns emerge. In Suing Alma Mater, Higher Education and the Courts, he tracks the key issues and processes involved as well as the "purposive" organizations that supported much of the litigation. Olivas, William B. Bates Distinguished Chair of Law and director of the Institute of Higher Education Law & Governance at the Law Center, answers a few questions about his research and emerging trends in legal issues that higher education faces today.
Q.) Is there a common thread that runs through higher education litigation over the years?
It is harder to get cases to SCOTUS (Supreme Court of the United States) in recent years—they accept fewer and only about two or three a year have anything to do with colleges.
Q.) How has that affected recent litigation?
The sheer crush of cases in the lower courts has grown, and a smaller number of those are chosen for Supreme Court consideration, so the odds have grown longer that any case will make it all the way through the chute. My thesis is that it is not the traditional civil rights groups bringing today's college cases, but conservative religious groups that have appropriated the civil rights argot and modus operandi.
Q.) Generally, how have institutions reacted to various legal challenges?
The most evident change is the rise in the legalization of campus generally, and the exceptional increase in regulation and administrative procedures on campuses. It is also a great time to practice in this area—on either side of the fence.
Q.) Can you elaborate on how the plaintiffs and their supporters have changed as issues evolved?
Yes—today it is mostly aggrieved whites bringing and supporting these cases, especially aggrieved Christian whites. As a lifelong Catholic and former seminarian, it is hard for me to muster sympathy for persons in the majority who misappropriate victim status and insist that they are oppressed. Christians in the U.S. are not oppressed, or even inconvenienced very much. They ARE the majority.
Q.) What legal issues do you see on the horizon for higher education?
As whites shrink in the overall population, I predict a rise in matters of equal protection and the rights of minorities. The reach of immigration and intellectual property—in all its manifestations—on campus will fuel many disputes, and the power of faculty to express themselves is being whittled away with cases such as Garcetti v. Ceballos.
Q.) This seems like it was a difficult book to write, given its broad reach and number of issues.
The political economy of court procedures required new background research for me, and I read all 123 cases plus many more. But I found it relatively easy to choose the case studies, and that part just wrote itself. I have taught the cases over the years and so I knew the formal facts, but here I had to swear that I was not making them up. Who could imagine these facts, where Baylor College of Medicine refused positions to Jewish doctors, where white colleagues confessed in a meeting that they could not work with Blacks, or where an LDS college student could successfully challenge the choice of certain plays in class because she would not swear? Certainly, one can learn from what NOT to do.
Suing Alma Mater, Higher Education and the Courts is published by the Johns Hopkins University Press and will be released May 30.
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