General Counsel

Recent Legal News Topics

Affirmative Action

The Supreme Court has agreed to hear two cases regarding the use of race as a consideration in student assignments to public schools in large, urban districts.  The Supreme Court granted certiorari on June 5, 2006.

Family Medical Leave Act (FMLA)

First Amendment

Military Recruiting on Campus

Political Campaign Activities

Public Records Law

Legal News Archive

Browse the following legal news summaries by topic:

Active Military Duty

Affirmative Action

Bankruptcy: Undue Hardship

Family Medical Leave Act (FMLA)

First Amendment

Intellectual Property

Military Recruiting on Campus

Political Campaign Activities

Public Records Law

 

Active Military Duty

April 16, 2003

Being Called to Active Military Duty

Tuition and Housing

Under state law, a student who is a member of the Wisconsin National Guard or a member of a reserve unit of the U.S. armed forces and withdraws from school to report for active duty for at least 30 days, may request:

  1. Reimbursement of all tuition and fees paid for all the courses and a prorated portion of room and board payments or
  2. An incomplete in all the courses and permission to complete the courses within six months after leaving state service or active service without paying additional tuition or fees.

Sec. 36.11 (47), Stats.

Protections as to Rents, Mortgages and Leases

If a student occupies a dwelling and the rent is more than $1,200.00 per month there is eviction protection for the Service member and their dependents. Also, there are several criteria that must be met in order to obtain relief from a mortgage obligation. First, the obligation is secured by a mortgage, entered into prior to service, and the property is owned by the Service Member or dependent before entry into Active Service. Second, the property is still owned by the Service Member or dependent at the time relief is sought. Third, Military Service materially affects the Service Member's ability to comply with the terms of the obligation. Furthermore, if a student is called to active duty and needs to terminate a lease the student does not need to show a material effect. In order to terminate a lease, the lease must have been entered into prior to Active Federal service and entered by or on behalf of the Service Member. Additionally, written notice must be given to the landlord within 28 days, and the effective date of termination is 30 days after the next rent due date after written notice given to the landlord. Also, this lease termination does not release non-family members so in a multiple tenant residence the other tenants would still be obligated under the lease.

The Soldiers' and Sailors' Civil Relief Act of 1940

The Soldiers' and Sailors' Civil Relief Act of 1940 ("SSCRA") includes provisions limiting the interest rate - Section 428 (d) of the Higher Education Act, enacted after the SSCRA, states that no provision of any law, including the SSCRA, which limits the interest rate on a loan shall apply to the FFEL program.

The provisions of the law protecting borrowers from certain collection proceedings only applies if a Federal Family Education Loan Program ("FFEL") lender or guaranty agency is suing a borrower who is covered by the Act. The Act prevents a creditor from obtaining a default judgment in court. It does not prohibit other collection efforts. A borrower's interest rate is not affected by the provision of the Act restricting interest charged to certain borrowers in military service.

Return of Title IV funds

If a Title IV eligible student withdraws because of being called to active duty, or has been otherwise impacted by the military mobilization, the school must perform the Return of Title IV Funds calculations that are required by the statute and regulations (34 CFR 668.22). If those calculations result in the school being required to return funds to one or more of the Title IV programs, it must do so. In many cases such a return of funds by the school will reduce the student's loan debt. An institution, however, is not required to collect an overpayment of grant funds based on the Return of Title IV Funds calculation for such a student. Therefore, the school is not required to contact the student, notify NSLDS, or refer the overpayment to the Department in these cases.

Maintenance of Student Loan Status

For students called to active duty, student loan lenders must maintain the loans in in-school, in-school-deferment, or grace period status during the period of the borrower's active duty service or reassignment. That status also continues into the next regular enrollment period after return from active duty so that the student has time to resume enrollment. However, this maintenance of loan status may not exceed a total of three years including the period of time necessary for the borrower to resume enrollment. Additionally, if the loan was in a grace period status at the time the borrower was ordered to active duty, the period of time during which the borrower was serving on active duty is excluded and the borrower receive their full grace period in the future.

Students Loans in Repayment Status

For borrowers whose loans are in repayment lenders or Perkins schools must grant forbearance for the expected period of the borrower's active duty service, beginning on the first day of active duty, not to exceed one year. The forbearance must be granted based upon the request of the borrower, the borrower's family or another reliable source. The request does not have to be in writing and the forbearance can be granted without supporting documentation and without a written forbearance agreement. The reasons for granting the forbearance must be documented in the borrower's loan records. Forbearance beyond the initial period will require supporting documentation and a written agreement with the borrower, unless we provide guidance extending the one-year limitation. During the initial forbearance process, lenders are encouraged to examine the borrower's eligibility for a military or other deferment.

Students whose loans are in default status

If a borrower is in default on a loan, the guaranty agency or Perkins school must, upon being notified that the student has been called to active duty, cease all collection activities for the expected period of the borrower's military service.

Principal Protections of the SSCRA:

  • 6% interest cap on loans, mortgages and credit cards
    • The difference between the normal interest rate and the 6% is forgiven, not accrued.
    • Criteria
  • The obligation was incurred PRIOR to mobilization
  • The Service Member is now on federal active duty
  • Such military service materially affects this Service Members ability to pay this obligation
    • Triggers
  • Effective at time the Service Member enters active duty BUT the Service Member must notify the lender (send the lender a letter requesting reduction and enclose a copy of orders)
    • Exclusions
  • Federally insured Student Loans are NOT covered
  • 20 USC 1078 covers student loan deferments

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Affirmative Action

October 20, 2005

Race as a factor in public school assignments

The Supreme Court has agreed to hear two cases regarding the use of race as a consideration in student assignments to public schools in large, urban districts.  The Supreme Court granted certiorari on June 5, 2006.

Parents Involved in Community Schools v. Seattle School District No. 1

Parents alleged that the school district violated the Equal Protection Clause by using race as a tiebreaker in assigning students to oversubscribed schools.  Segregated housing patterns in Seattle challenged the district in balancing student preferences to attend school near their homes and achieving a diverse learning environment.  The district’s goal was for the student population of each school to more closely reflect the student population of the entire district: 40% white and 60% nonwhite, within a range of plus or minus 15%.  Assignments were made primarily based on student choice, with race as the tie breaker. 

The court applied a strict scrutiny analysis.  First, it determined that the district had a compelling interest to consider race in order to achieve the benefits of diversity, including furthering racial and cultural understanding, promoting the integration of the community as a whole, and better preparing students for work and citizenship.  The court also acknowledged research that concluded racially isolated schools are still unequal schools.

The court also held that the district’s race-based tiebreaker was narrowly tailored to achieve its compelling interests.  The court analyzed five “hallmarks” of a narrowly tailored affirmative action plan: 1) individualized consideration of applicants, 2) absence of quotas, 3) serious, good faith consideration of race-neutral alternatives, 4) that no member of any racial group was unduly harmed, and 5) that the program was limited in time.  First, the court found that individualized review was not applicable in this situation because all students receive a placement.  “If a noncompetitive, voluntary student assignment plan is otherwise narrowly tailored, a district need not consider each student in an individualized holistic manner.” 

Next, the court determined that the district’s plus or minus 15% variance was not a quota.  Similar to a critical mass, the district did not reserve a fixed number of slots for white or nonwhite students based on race.  Third, the court felt that the district had considered other race-neutral alternatives to achieve diversity, such as using poverty as a tiebreaker or implementing a lottery system (these plans were not feasible).  Fourth, the plan did not unduly harm any racial group because the tiebreaker did not benefit one race or group to the detriment of the other.  In some schools, nonwhite students were given a preference, but in others whites were given a preference, resulting in a small burden on all students.  Most students received their first choice school, without their race considered.  Finally, the program was limited in time because district reviewed its plan annually and had previously adjusted it to respond to student choice patterns.  Therefore, the assignment plan did not violate the Equal Protection Clause under the standards in Grutter and Gratz.

However, the dissent reached a different legal conclusion on every point.  It equated the district’s plan to racial balancing, which is unconstitutional.  The tiebreaker system relied solely on race to ensure that schools remain diverse.  While the dissent acknowledged that there are some benefits to integrated schools, the district did not establish either of the two compelling government interests identified by the Supreme Court in Grutter and Gratz.[1]  Furthermore, even if the district had a compelling interest, the program was not narrowly tailored.  The dissent argued that an individualized assessment is required under Grutter in order for a government program that considers race to be constitutional, and objected to the majority’s dismissal of that factor. 

The dissent found that the “rigid, predetermined ratio of white and nonwhite students” was equivalent to a quota, defined in Gratz as a “fixed number or percentage.”  It also considered that 82% of students selected one of the oversubscribed schools, indicating that students and their parents perceive differences in the quality of education offered by each school.  Some students were unduly burdened by the tiebreaker system because they were denied access to a better education solely because of their race.  In some cases, students were assigned to schools so far from their homes that they had four-hour daily bus trips, which effectively denied them a public education because of their race. 

July 21, 2005

McFarland v. Jefferson County Public Schools

Jefferson County Public Schools serves the city of Louisville, Kentucky.  The student population is approximately 34% black and 66% white.  The district, previously under court order to desegregate the public schools, sought to maintain a fully integrated countywide system.  Each school sought to have a black student enrollment of approximately 15%-50%.  Parents challenged the district’s student assignment plan when their children did not receive an assignment to their preferred school, alleging that the district impermissibly used race as the determinative factor. 

The court applied a strict scrutiny test under the framework in Grutter and Gratz.  It held that the district established a compelling interest in the benefits of integrated schools, including a better academic education for all students, better appreciation of political and cultural heritage for all students, more competitive and attractive public schools and broader community support for all the district’s schools. The court also held that the procedures used to assign students to most schools were narrowly tailored to meet its compelling interest.  It also applied the four factors articulated in Grutter: 1) whether the plan amounts to a quota, 2) whether the applicant is afforded an individualized review, 3) whether the plan “unduly harms members of any racial group, and 4) whether the district has given serious good faith consideration to workable race-neutral alternatives to achieve its goals. 

First, the court found that the actual percentages of black students at each school varied considerably, indicating that the district did not use a quota system.  Second, race was only one factor among many considered, such as student choice, place of residence, school capacity and random draw.  Race was only occasionally the “tipping factor” in the assignment process.  Third, no student was unduly harmed because all schools received similar funding and offered similar academic programs.  Unlike the universities in the Michigan cases, the district did not deny anyone an education.  It noted that most courts have held that students have no constitutional right to attend a specific school.  Finally, the district took a considerable effort to achieve its goals without using race as a consideration.  A large number of students were assigned by voluntary choices and geographic boundaries.  Therefore, the assignment plan used in most schools met the test articulated in Grutter.

However, the district also operated schools called “traditional schools” which used a different student assignment procedure.  Students were divided into four groups: white male, white female, black male and black female.  They were then selected from these lists to achieve a group within the district’s diversity goals.  This process was not narrowly tailored because it insulated groups of applicants from others and used race as the determining factor in assignments.  The court found that the district could achieve its diversity goals without using this procedure because the traditional schools received a sufficient number of black applicants and the district had other tools available to maintain the enrollment of black students.  The court ordered the district to revise the assignment plan used in the traditional schools.

[1] The first is to remedy a de jure system of segregated schools.  Seattle never had such a system, and was never under a court order to desegregate. Secondly, the Court has allowed universities to consider race as a part of an overall flexible assessment of individual applicants to attain student body diversity.

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Jan. 7, 2005

New affirmative action decision: Smith v. University of Washington Law School

On December 20, 2004, the United States Court of Appeals for the Ninth Circuit handed down a decision in Smith v. University of Washington Law School, a case addressing issues of affirmative action in university admissions. Smith is important primarily because it is one of the first cases to interpret the 2003 United States Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger. In so doing, it helps to clarify the elements of a narrowly-tailored race-conscious admissions program.

The plaintiffs in Smith were three white Washington residents who applied to the Law School and were denied admission. They alleged that the Law School’s use of race in its admissions process was unconstitutional. In an earlier decision in this case, the Ninth Circuit had already held that educational diversity was a compelling state interest that could justify the use of race. This was confirmed in 2003 by the United States Supreme Court’s decisions in Grutter v. Bollinger and Gratz v. Bollinger. Thus, the only remaining issue for the Court to decide was whether the Law School’s admissions program was narrowly tailored.

In its analysis, the Ninth Circuit relied on the Grutter and Gratz cases for the proposition that there are several “hallmarks” of a narrowly tailored admissions program and measured the Law School’s program against these criteria. First, the Court found that the Law School had not established any quotas, targets, or goals for minority admissions. Second, the Law School demonstrated that it reviewed each application individually and gave each a holistic review. Third, the Court found that the fact that the Law School considered other “diversity” characteristics besides race indicated that the program did not unduly harm members of any particular racial group. Finally, the passage of Initiative 200 which had the effect of preventing state actors from considering race and ethnicity in admissions effectively served as a “sunset provision” for the program.

In holding the Law School’s program constitutional, the Court approved the Law School’s use of an “ethnicity substantiation letter,” finding that it supported rather than undermined the constitutionality of the Law School’s program. This letter was sent to certain applicants who had identified themselves as minority students on the Law School’s application. The letter sought to obtain additional information about these applicants to assist the Law School in identifying those minority applicants whose race and ethnicity had a demonstrable impact upon their lives.

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June 25, 2003

US Supreme Court Decisions on the Grutter and Gratz Affirmative Action Cases

This week the United States Supreme Court issued their decisions in the University of Michigan Affirmative Action cases, Grutter v. Bollinger and Gratz v. Bollinger cases. The decisions can be found at on the Supreme Court's website.

The University of Michigan website has more information as well.

The UW System is reviewing the cases and will have information posted at a later date.

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Bankruptcy: Undue Hardship

July 8, 2004

Tennessee Student Assistance Corporation v. Hood:
U.S. Supreme Court affirms Hood

A student seeking to discharge her student loans via an “undue hardship” determination in the federal bankruptcy courts does not implicate a State’s Eleventh Amendment immunity from suit, the U.S. Supreme Court held in a 7-2 decision on May 17 (Tennessee Student Assistance Corporation v. Hood, U.S., No. 02-1606, 5/17/04).  

Background

Pamela Hood had an outstanding balance on student loans guaranteed by petitioner Tennessee Student Assistance Corporation (TSAC), a state entity, at the time she filed for Chapter 7 bankruptcy.  Federal law typically bars ex-students from discharging their educational debt in bankruptcy.  Hood moved to discharge her student loans by invoking a process known as an “undue hardship” determination. 

The State objected to her request that the debt be discharged by the federal Bankruptcy Court, arguing that to invoke an “undue hardship” proceeding would infringe the State's sovereign immunity.  The doctrine of sovereign immunity prevents the State from being sued by private parties without its consent.  The State also argued that, in cases like Hood’s, a student-debtor may only seek an “undue hardship” determination if the collection efforts are being made in the State court system—not the federal Bankruptcy Courts—a position which was supported by 47 other states.

Hood countered that the Federal Rules of Bankruptcy Procedure do authorize such a proceeding, and that this congressional permission signifies a constitutional waiver of State sovereign immunity because it falls under the power granted to Congress by the Bankruptcy Clause (Article I, § 8, cl. 4, of the Constitution).

The Bankruptcy Court ruled in Hood’s favor, holding that the States ceded their immunity from private suits in bankruptcy in the Constitutional Convention, thus giving Congress the Constitutional authority to waive the States’ sovereign immunity through the Bankruptcy Clause. The Sixth Circuit Bankruptcy Appellate Panel affirmed, as did a panel of the Sixth Circuit Court of Appeals.  The U.S. Supreme Court granted cert to determine whether the Bankruptcy Clause indeed endows Congress with such authority, noting that five other circuits had reached the opposite conclusion that States retained sovereign immunity in similar bankruptcy proceedings.   

The Issue

The issue in the case was whether a federal Bankruptcy Court could override a state’s objection to jurisdiction based on sovereign immunity in an adversary complaint seeking discharge of a student loan. 

In other words, does the Bankruptcy Clause (Article I, § 8, cl. 4, of the Constitution) give Congress the authority to waive a State's sovereign immunity in “undue hardship” proceedings before a federal Bankruptcy Court determining the status of outstanding student loan debt owed to the state?

The Argument

The Supreme Court, with Rehnquist writing for the 7 – 2 majority, actually declined to broach the subject of sovereign immunity.  Rather, the Court sidestepped the issue by plunging into an esoteric debate of in rem* and in personam** jurisdiction, ultimately ruling that the federal Bankruptcy Courts possess in rem jurisdiction to hear “undue hardship” adversary proceedings brought under § 523(a)(8) of the Bankruptcy Code.   

*In Rem
Against a thing, such as property, status, or a right, rather than against a person. Used of an action or a judgment.  Against or with respect to a thing (as a right, status, or interest in property) without reference to the persons involved.

**In Personam
Against a person rather than against property. Used of an action or judgment.  Against a person for the purpose of imposing a liability or obligation to do or not do something <an action in personam>.

Source: Merriam-Webster Dictionary of Law, © 1996 Merriam-Webster, Inc.

The Court differentiated this special bankruptcy procedure from a suit to avoid implicating sovereign immunity.  "A bankruptcy court is able to provide the debtor a fresh start in this manner ... because the court's jurisdiction is premised on the debtor and his estate, and not on the creditors," wrote the Court.  That is, a student seeking discharge of state loans in Bankruptcy Court does not initiate a private lawsuit against a state; instead, the process is merely one which involves the student debtor's assets and incidentally affects a State.  As such, the Court affirmed that “undue hardship” determinations are permissible regardless of whether Congress may prompt a waiver of State sovereign immunity.

The Court further noted that a bankruptcy debtor does not seek damages or any affirmative relief from a State by seeking to discharge a student loan.  “No matter how difficult Congress has decided to make the discharge of student loan debt, the Bankruptcy Court's jurisdiction is premised on the res [(meaning the debtor’s limited assets)], not on the persona [(meaning the defendant State)]," the Court said.  Nor does the debtor "subject an unwilling State to a coercive judicial process" by seeking a discharge of her debts, said the Majority.

Justice Clarence Thomas entered a dissent in which Antonin Scalia joined.  He criticized the Majority view for expanding the scope of in rem jurisdiction to the Bankruptcy Courts, and for ignoring the similarities of “undue hardship” determinations with conventional legal claims.  Thomas would have reached the certified question of the case, and indeed construed “undue hardship” determinations as adversarial proceedings that would be explicitly subject to a State’s sovereign immunity. 

Although Rehnquist’s Majority recognized that such loan discharge determinations may possess the general characteristics of a civil action, it was able to distinguish the unique nature of this bankruptcy issue by relying on arguments favoring in rem jurisdiction.  Thus, the federal Bankruptcy courts may now adjudicate the dischargeability of State-sponsored educational loans without concern for the State sovereign immunity defense.

The Outcome

Hood appears to be a victory for the jurisdiction of the Bankruptcy Courts at the expense of State sovereignty.  But, the Court only prolonged the inevitable by dodging the certified issue and ignoring much of the Sixth Circuit’s extensively reasoned arguments that the language of the Bankruptcy Clause in the Constitution abrogated sovereign immunity.  Whether Congress indeed has the authority to effect a waiver of State sovereign immunity under § 106(a) of the Bankruptcy Code has yet to be firmly decided among a divided judiciary.  However, the Court hinted that this issue may someday be decided based on a related bankruptcy procedure.  In distinguishing the two, the Court noted that “[the ‘undue hardship’ process is]…unlike an adversary proceeding by the bankruptcy trustee seeking to recover property in the hands of the State on the grounds that the transfer was a voidable preference.”  The question of whether sovereign immunity would apply in the latter case remains open, and the Court would unlikely be able to skirt this issue again by twisting the designation of an adversary claim in bankruptcy proceedings against the State. 

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Family Medical Leave Act (FMLA)

Feb. 5, 2008

National Defense Authorization Act Extends FMLA Benefits to Service Member Families

Congress recently passed the National Defense Authorization Act which amends the Family Medical Leave Act (FMLA) to allow FMLA leave for the family of injured service members and the family of service members called to active duty.  Previously, the FMLA provided eligible employees with up to twelve weeks of unpaid leave for:

  • the birth of a child and to care for the newborn child;
  • the placement of a child with the employee for adoption or for foster care;
  • the care of a child, spouse, or parent with a serious health condition; or
  • the employee's own serious health condition. 

The new amendment allows similar leave for employees who have family members serving in the Armed Forces, National Guard or Reserves.  Family members of injured service personnel may elect up to twenty-six weeks of leave in a twelve month period to provide care for their injured family member.  Additionally, family members of personnel called to active duty may receive up to 12 weeks of leave to deal with “exigencies” arising from the call to active duty.  These changes do not modify the existing application of the FMLA and simply add additional classes of covered employees.

Leave for care of injured service personnel:

An employee qualifies for injured service personnel leave if the employee is the spouse, child, parent or next of kin of a covered service member.  Under the amended act, a covered service member is any member of the Armed Forces, National Guard or Reserves who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary disability retired list for a serious injury or illness.  An employee who has a specified relationship to a “covered” service member may elect to take up to twenty-six weeks of leave in order to care for the injured individual.  The employee may elect, or an employer may require the employee, to substitute any accrued paid vacation leave, personal leave, family leave, or medical/sick leave in place of FMLA injured service personnel leave.  The injured service personnel provision of the amended FMLA went into effect January 28, 2008 and should be immediately applied where applicable.

Leave for family of active duty personnel:

This class of leave has more similarity to the traditional classes of FMLA leave noted above.  Under the amended act, where an employee is the spouse, child or parent of a service member who is called to active military duty, the employee may elect to take up to twelve weeks of unpaid leave within a twelve-month period in order to deal with any “qualifying exigencies” arising from the family member’s call to active duty.  The same standards which apply to leave for adoption, child birth and serious health conditions also apply to this new class of FMLA leave.

The amended act does not define what constitutes a “qualifying exigency” and Congress has delegated the task of definition to the Department of Labor (DOL).  The DOL is currently drafting a definition and hopes to have guidelines in place as quickly as possible. This provision of the amended act will not take effect until the DOL releases rules and regulations for its proper application.  Nonetheless, the DOL has asked that employers apply the active duty leave provision “in good faith” until it releases further guidance.  Please visit the UWSA Office of General Counsel website for future updates or check directly with the DOL at www.dol.gov/esa/whd/fmla/. 

For more information about the FMLA eligibility and application please visit www.uwsa.edu/gc-off/deskbook/fmla.htm

 

First Amendment

May 30, 2006

First Amendment Protection and Public Employees:
Garcetti v. Ceballos

The Supreme Court recently clarified the circumstances in which a public employer can discipline an employee for speaking out on the job. It held that statements made pursuant to an employee’s official duties do not receive First Amendment protection.  While the Court declined to address how this holding may impact expression related to academic scholarship and teaching, the rule applies to other employee speech situations in the public university.

In Garcetti v. Ceballos, a district attorney wrote a memo to his supervisors recommending dismissal of a case because of serious misrepresentations used to obtain a search warrant.  He was subsequently reassigned to a different position and denied a promotion. The attorney claimed that the county retaliated against him because of his memo in violation of the First and Fourteenth Amendments. 

The Court held that the attorney’s speech was not constitutionally protected because it was made pursuant to his official duties as a public employee. His memo was the speech of "a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case." Although the public may be concerned about the law enforcement actions described in the attorney’s memo, the memo was primarily a matter between employer and employee.

Government employers, like private employers, need a significant degree of control over their employees’ words and actions to further efficient public services. The Court noted the government employer’s interest in the consistency and clarity of official communications.  "Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission."

The Court affirmed that public employees retain First Amendment rights when they speak as citizens on matters of public concern.  However, an employer’s control over an employee’s speech made pursuant to official duties does not restrict public employees from participating in public debate.  The Court distinguished the attorney’s memo from protected speech such as writing a letter to a newspaper. 

The Court also acknowledged that public employees who report government inefficiency and misconduct have protections under federal whistleblower laws and state and local labor codes.  For example, an employee who reports racist hiring practices to her supervisor engages in constitutionally protected speech.  In addition, the Court advised that public employers should be receptive to constructive criticism offered by their employees.

One of the justices questioned whether that the new rule would be broad enough to include the teaching and scholarship of public university professors, who necessarily speak and write pursuant to their official duties.  However, the Court declined to address how its analysis would apply in a public university setting.

 

Oct. 8, 2004

Locke v. Davey

Joshua Davey was a student at Northwest College, a small Christian college that is affiliated with the Assemblies of God denomination. He planned to major in business management/administration and pastoral ministries. Davey had been awarded a Promise Scholarship from the state of Washington. Promise Scholarships are intended to assist academically talented Washington State students in attending college. The scholarships are funded through the Washington legislature and students may use the funds for any education-related expenses. Additionally, both private and public institutions may qualify as eligible postsecondary institutions if they are nationally accredited.

Under the Washington statutes, a student may not use a Promise Scholarship to pursue a degree in theology. This is because the state constitution prohibits the use of state funds for students to pursue degrees that are devotional in nature or designed to induce religious faith. Davey challenged this rule in his lawsuit against the state of Washington claiming the prohibition violated his rights to the free exercise of religion, freedom of speech, equal protection under the law, and the Establishment Clause.

The U.S. District Court rejected Davey’s claims. The U.S. Ninth Circuit Court of Appeals reversed the U.S. District Court on the grounds that Washington had singled out religion for unfavorable treatment and therefore the treatment of theology majors had to be narrowly tailored to achieve a compelling state interest under Lukumi v. Hialeah. The U.S. Ninth Circuit Court of Appeals concluded that if Washington wanted to single out religion for unfavorable treatment, the state had to narrowly tailor such treatment to a achieve a compelling state interest. The court found that the interest in avoiding the establishment of religion was not a compelling interest and reversed the lower court ruling.

The Supreme Court heard the case reversed the Ninth Circuit, holding that the state of Washington did not infringe on Davey’s free exercise of his religion when it denied Davey a scholarship. Citing the tension between the Establishment Clause and the Free Exercise Clause, the Court held that there is sufficient “play in the joints” between the two clauses to allow a state to refuse to fund religious devotional studies.

The Religion Clauses of the U.S. Constitution state that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses, known as the Establishment Clause and the Free Exercise Clause, often conflict with one another. The Court has long maintained that there is some “play in the joints” of the two clauses. This means that there are some actions allowed under the Establishment Clause that do not violate the Free Exercise Clause. Here, the Court held that a state may refuse to fund devotional religious study without interfering with the right to freely exercise one’s religious choice.

The Court rejected Davey’s argument that the rule against funding devotional religious studies was unconstitutional because it was not neutral towards religion. The Court observed that Washington’s rule did not impose any legal sanctions on the exercise of religion but instead merely chose not to fund a particular category of study. The Court also rejected the argument that Washington’s rule requires students to choose between their religion and a public benefit by pointing out that Promise Scholars may still use their scholarships to pursue a secular degree at a different institution from where they are studying devotional theology. Finally the Court noted that Promise Scholars may take devotional theology courses in Christian colleges (as was the case with Davey); the prohibition simply bars the student from using the funds to obtain a theology degree.

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Intellectual Property

Supreme Court issues decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.

View PDF Supreme Court decision in Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd

-Argued March 29, 2005 – Decided June 27, 2005

The Supreme Court ruled unanimously in favor of expanded copyright protection in a case pitting twenty-eight major entertainment companies and the rights of artists to protect their work against the innovators and software developers responsible for creating such peer-to-peer data-sharing networks as Morpheus, Grokster, and KaZaA. This is an important case for colleges and universities because it casts doubt on the legality of P2P file-sharing programs commonly used by students on university networks.

Grokster developed and distributed computer software which enabled users to share data through peer-to-peer networks. Unlike the original Napster application—which stored files on a central server for download—the software being challenged in this case allows users to share data directly between networked computers. Since users were employing programs like Grokster to share copyrighted works, and because the software developers funded their operations by selling online advertising space, it became apparent that the software developers knew about this copyright-infringing activity and were perhaps actively encouraging it. The entertainment industry’s complaint alleged that software developers had simultaneously enabled and induced users to commit acts of copyright infringement by making available various data sharing applications.

Before the case reached the Supreme Court, lower courts had found that the software companies could not be held liable for end users’ copyright violations. Those rulings were based on the Supreme Court’s 1984 Sony-Betamax decision, which held that a distributor (Sony) could not be found liable for copyright violations committed by end-users of the technology (the VCR) so long as the technology is capable of substantial non-infringing uses such as time-shifting (recording on-air TV programs for later viewing).. The lower courts similarly found that Grokster and other peer-to-peer file sharing applications are capable of and are being used for substantial non-infringing uses—such as swapping research information, historical recordings, digital educational materials, "shareware" and "freeware," news broadcasts, and public domain content—and thus that the firms cannot be held liable for any infringing activity of end-users.

In a unanimous 9-0 decision delivered by Justice Souter, the Supreme Court reversed the lower court, finding Grokster and other distributors of P2P software potentially liable for copyright infringement of its users if a distributor promotes, encourages, or induces infringement among users of any given device.

According to many observers, the Court is seeking to guide developing technologies down a path which maintains adequate copyright protections without unduly stifling technological innovation. The effects of this ruling will be observable in the next wave of software development for peer-to-peer sharing networking applications; similarly, the regulatory effect of the holding will be felt immediately by software developers in litigation over the current and past use of their products. As the Court put it, however, “[T]echnology alone can't be the basis of copyright liability.”

According to a survey released June 29, 2005 by the Business Software Alliance (BSA), two-thirds of college students surveyed found nothing unethical about swapping or downloading digital copyrighted files without paying for them. Similarly, more than half of those surveyed would find it acceptable to do so in the workplace. Because people age 17-24 comprise the biggest user group of peer-to-peer software applications, part of the industry’s effort to recoup sales involves marketing campus-wide online music site licenses to universities. Major media labels have even encouraged special rates for universities to sign up with sharing networks such as Napster, Rhapsody, Cdigix or Ruckus. UW System campuses may contact their campus legal counsel or the UW System OGC if they are considering entering into an agreement with one of these companies or have any questions about the Grokster decision.

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Oct. 8, 2004

RIAA v. Verizon

The District of Columbia Circuit Court of Appeals recently ruled that the Recording Industry Association of American (RIAA) cannot compel Verizon Internet Services to supply the names of subscribers using peer-to-peer sharing software unless the infringing material is stored onto Verizon's servers. This decision arose out of litigation this past summer where the RIAA took legal action against individual users who downloaded copyrighted material without permission. In order to initiate these lawsuits, RIAA subpoenaed internet service providers (ISPs) for the names of the offending users. In the case of Verizon, RIAA subpoenaed them for the names of two subscribers who were sharing a large number of .mp3 files of copyrighted music via P2P programs like KaZaA. Verizon refused to supply the names and the RIAA filed a motion to force Verizon to supply the names. Citing section 512(h) of the Digital Millennium Copyright Act, the RIAA maintained section 512(h) authorized courts to issue subpoenas to ISPs to provide names of suspected copyright infringers who were either downloading infringing material from a server or who were using an ISP to transmit infringing material.

Section 512 of the DMCA contains four "safe harbors" or ways that ISPs can avoid liability for copyright infringement under certain conditions. They are (1) transmitting, routing, or providing connections for infringing material; and (2) system caching, which is temporary storage of infringing material; and (3) storage at the direction of the user of infringing material; and (3) storage at the direction of the user of infringing material; and (4) and linking to or use of other location tools to infringing material. All of these safe harbors require certain actions on the part of the ISP that are described at length in the statute.

For instance, to avoid liability for transmitting infringing material, an ISP must not initiate the transmission. Another example is the second safe harbor which requires the ISP to meet certain conditions regarding the transmission and retrieval of material created by the ISP. Other than the first safe harbor, the statute concerns data that is stored on an ISP's server. Also, these three safe harbors contain a notice and take-down rule that requires the ISP to quickly remove or disable access to material that a copyright owner claims is infringing. The statute does not expressly state that these notice and take-down provisions apply when the ISP is merely a conduit through which the infringing data is passed.

The statute requires a subpoena to identify material to be removed or access to which the ISP is to block access. The court reasoned that for subpoenas issued for material not actually stored on an ISP's server, the ISP cannot identify such material. Infringing material that is only transmitting through an ISP resides in that individual user's computer and therefore, it is impossible for the ISP to identify it, thus removing P2P infringement from the reach of the subpoena authority of the DMCA. Therefore, the court concluded that ISPs do not have to comply with subpoenas unless the offending material is stored on the ISP's servers.

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Military Recruiting on Campus

March 6, 2006

Access to universities for military recruiters: Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR)

On March 6, 2006, the United States Supreme Court ruled that a portion of the Solomon Amendment regarding military recruiter access to college campuses was constitutional.  The Solomon Amendment requires institutions of higher education, including their law schools, to offer military recruiters the same access to its campus and students as it provides to nonmilitary recruiters, as a condition of federal funding.  FAIR, an association of law schools which opposes discrimination based on sexual orientation and objects to the Government’s policy on homosexuals in the military, alleged that requiring educational institutions to accommodate military recruiters on campus forces the schools to choose between surrendering their First Amendment rights and losing federal funding for the university.

The Supreme Court first addressed the Solomon Amendment’s requirements upon educational institutions.  Schools must offer military recruiters the same access to campus and students that it provides to nonmilitary recruiters receiving “the most favorable access,”[1] i.e. the school cannot restrict access to military recruiters simply by having a policy that also restricts access to nonmilitary recruiters who discriminate against homosexuals.  The university must give the military recruiters the same access they give to employers who do not discriminate against homosexuals. Access to campus and students includes participation in recruiting events and interview programs, as well as access to support services such as communication of recruiting events through e-mail or flyers, if these services are provided to nonmilitary recruiters.  In addition, the common practice of providing access to one group of students, such as undergraduates, but denying access to other students, such as law students, does not comply with the amended statute.

FAIR’s first argument was that the Solomon Amendment impermissibly infringes on the school’s right to speak out against the government’s discriminatory practices.  The Court disagreed; however, the Solomon Amendment generally regulates conduct, not speech.  “Schools are not speaking when they host interviews and recruiting receptions – they are facilitating recruiting to assist their students in obtaining jobs.”[2]  Although communication of recruiting events involves speech, this form of speech is not so inherently expressive as to violate the school’s First Amendment rights.  Allowing military recruiters to participate in campus recruiting does not interfere with the schools’ ability to express their views on the government’s employment policies.

FAIR also argued that the Solomon Amendment violated the schools First Amendment right to freedom of expressive association because the school is not required to adopt the military’s views as its own.  The court noted that students understand that the views of recruiters and other speakers who visit the campus do not necessarily represent the views of the university.  The Solomon Amendment places permissible conditions on educational institutions continued receipt of federal funding.  Universities, including their law schools, must provide the same access to their campuses and students to military recruiters and provide them with the same support services as they give to nonmilitary employers who do not engage in discriminatory practices. 

[1] 126 S. Ct. at 1306.

[2] Id. at 1310.

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Public Records Law

November 7, 2006

Disclosure of Public Employee’s Disciplinary Records
The Lakeland Times v. DNR and Kroeplin v. DNR

The Wisconsin Court of Appeals recently clarified when a public employee’s disciplinary records may be released under the Wisconsin public records law. In Lakeland Times, a DNR warden was investigated and disciplined for improperly requesting a license plate check. A local newspaper requested all documents relating to this incident, including disciplinary records. The DNR agreed to release some of the records. The warden challenged the release, asserting the records were related to “staff management planning” (i.e., performance evaluation), which may not be disclosed under the statute.

The court ordered the records to be released. Although disciplinary records may be used in staff management planning, there is a strong public interest in the accountability of public employees in their official duties. Records may be disclosed after the disciplinary investigation is complete, if the public interest in knowing about allegations of wrongdoing outweighs the public interest in encouraging public employees to engage in open communication with their supervisors. The court also acknowledged that privacy-related interests may outweigh the public interest in disclosure if releasing the information would threaten the personal privacy and safety of employees.

Although the decision involved law enforcement, all public employees should be aware that disciplinary records may be subject to public disclosure after the conclusion of an investigation.

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