found that a proposed blacks-only law school in
Texas would be unequal to the prestigious and
then-all-white University of Texas Law School
not only in the quality of its tangible facilities
but also in the quality of such intangibles as
reputation and education.
Despite these early victories, de jure racial
segregation of public colleges and universities
did not become illegal until the court decided
BROWN V. BOARD OF EDUCATION OF TOPEKA, KANSAS,
347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
Following Brown, schools throughout the United
States were required to adopt desegregation
policies, but
DE FACTO (i.e., actual) segregation
remained in many university systems.
Litigation in the federal courts continued
more than 50 years after Brown. In 1992 the U.S.
Supreme Court held that the state of Mississippi
had failed to satisfy its duty to desegregate the
state university system, in United States v.
Fordice, 505 U.S. 717, 112 S. Ct. 2727, 120
L. Ed. 2d 575 (1992). In Fordice, th e st ate had
eliminated its requirement that blacks and whites
be educated separately, but allowed previously
white schools to remain distinct from previously
black schools and inaccessible to black students.
By the mid-1980s previously all-white schools
in Mississippi remained more than 80 percent
white and previously all-black schools remained
more than 90 percent black. The court found

in response to the slow pace of racial reform,
Congress passed the Civil Rights Act of 1964,
which prohibited discrimination on the basis of
race (and sometimes gender) in public accom-
modations, federally funded programs, and
employment. Title VI of the act prohibits
discrimination “on the basis of race, color, or
national origin,” in “any program or activity
receiving Federal financial assistance,” which
includes many centers of higher learning in the
United States. Title VI reaches state and private
schools that receive direct federal funding. It also
reaches some institutions that receive no direct
federal aid but that have a significant proportion
of students who do (Grove City College v. Bell, 465
U.S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 [1984]).
Affirmative Action Beginning in the late 1960s,
in response to the
CIVIL RIGHTS MOVEMENT,many
universities began adopting
AFFIRMATIVE ACTION
College Enrollment of Recent High School Graduates, 1970 to 2006
0 10203040506070
Percent enrolled in college
a
a
Persons aged 16 to 24 who graduated from high school in the preceding 12 months.
Includes persons receiving GEDs.
SOURCE: National Center for Education Statistics, Digest of Education Statistics,
2007.

LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
528 COLLEGES AND UNIVERSITIES
policies. Such policies attempt to encourage or
to promote racial equality by ending de jure
inequalities that remain even though legal
inequalities have been abolished. In the begin-
ning, many institutions employed quotas that
reserved a certain number of spots for
applicants of racial minorities. Other institu-
tions considered membership in a racial
minority as one var iable in determining
whether to admit a stude nt.
It was not long before affirmative action
policies came under legal attack as “reverse
discrimination.” The first serious challenge to
affirmative action,
REGENTS OF THE UNIVERSITY OF
CALIFORNIA V
. BAKKE, 438 U.S. 265, 98 S. Ct. 2733,
57 L. Ed. 2d 750 (1978), fundamentally changed
its structure. In Bakke, Allan Bakke, a civil
engineer of Norwegian descent, applied for
admission to a medical program at the Univer-
sity of California. The program in question set
aside 16 spaces for minority students out of a
class of 100. Candidates for the set-aside spaces
did not have to meet the minimum grade-point-
average threshold established for other candi-

longer constituted an acceptable means of
affirmative action. Most universities that main-
tained affirmative action programs adopted the
type of program approved in Bakke, which
permits the consideration of race in admission
or scholarship decisions in order to encourage
diversity. Some schools introduced scholarships
that were designed to benefit only certain
groups, suc h as students belonging to a
particular race. Beginning in the mid-1980s, as
the U.S. Supreme Court began holding that
affirmative action programs designed to remedy
the effects of past disc rimination would need to
satisfy the same strict standards as other race-
based classifications (City of Richmond v. J. A.
Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102
L. Ed. 2d 854 [1989]), race-restricted scholar-
ships became the focus of lawsuits.
Lower federal courts struggled with Bakke
for years. In Podberesky v. Kirwan, 38 F.3d 147
(4th Cir. 1994), the U.S. Court of Appeals for
the Fourth Circuit considered a challenge to
the University of Maryland’s Banneker Scholar-
ship program, a merit-based scholarship for
which only black students were eligible. Daniel
J. Podberesky, a Hispanic student, qualified for
the Banneker Scholarship in all respects but
race. He sued the university, alleging that the
scholarship program discriminated on the basis
of race. The university countered that the

governmental interest.
The Supreme Court finally agreed to review
its decision in Bakke by granting
CERTIORARI in
two decisions involving the University of
Michigan. In one case, Gratz v. Bollinger, 539
U.S. 244, 123 S. Ct. 2411, 156 L. Ed. 2d 257
(2003), the court reviewed the university’s policy
of giving undergraduate admission preferences
to racial minorities. The real effect of this
program was that virtually all qualified minority
applicants were admitted, but not all qualified
white candidates were admitted. The court
concluded that the program was unconstitu-
tional because it was not narrowly tailored to
further the government’s interest in having a
diverse student body.
In the second case, Grutter v. Bollinger, 539
U.S. 306, 123 S. Ct. 2325, 156 L. Ed. 2d 304
(2003), the court reviewed the University of
Michigan’s law school admissions policy. Unlike
the undergraduate policy, the law school con-
sidered race a “plus” factor among a number of
other factors. The court concluded that using
race as a plus factor was a means of narrowly
tailoring the school’s desire to have a diverse
student body. The result of the Grutter decision
was that many colleges and universities altered
their admissions policies to consider race as one
of the factors for admissions.

DEPARTMENT OF JUSTICE and did not involve
a particular student.
In Faulkner, the Court required the Citadel
to admit the plaintiff, Shannon Faulkner,
because Faulkner was a “real live plaintiff.” The
court explained that, although admission to the
school was the only appropriate remedy in a case
involving a live plaintiff, the state might later
develop a parallel program, as recommended in
VMI, or adopt a coeducational policy.
In VMI, the court held that because
“homogeneity of gender” was integral to the
type of leadership education provided at VMI,
maintaining a men-only college substantially
furthered the legitimate public purpose of
providing unique leadership education. It then
held that the establishment of a separate-but-
parallel, state-sponsored women’s college with
substantially the same goals as VMI’s would
satisfy the requirements of the Equal Protection
Clause. Faulkner withdrew shortly after the
school year began, putting an end to any possible
appeals in her case. However, the court did hear
the government’s appeal from the VMI decision
and held that Virginia’s categorical exclusion of
women from VMI denied equal protection to
women (United States v. Virginia, 116 S . C t. 2264).
The court agreed that gender-based classifications
are not completely forbidden by the Equal
Protection Clause, but it stated that Virginia had

that its use had a discriminatory effect on the
awarding of scholarships without bearing any
relationship to a reward for successful perfor-
mance in high school. In Yusuf v. Vassar Colleg e,
35 F.3d 709 (1994), the U.S. Court of Appeals
for the Second Circuit held that a private college
may have discriminated against a male student
who allegedly sexually harassed a female student,
by systematically applying different and stricter
standards to sexual haras sment proceedings
than to other disciplinary proceedings. In
Franklin v. Gwinnett County Public Schools,
503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208
(1992), t he U.S. Supreme Court held that Title
IX also prohibits sexual harassment in edu-
cational institutions and that teachers who
sexually harass or abuse students discriminate
on the basis of sex in violation of Title IX.
Title IX ’s most visible effect has been in
college athletics. Most colleges and universities
operate men’s and women’s athletic programs,
some of which participate in intercollegiate
competitions administered by the National
Collegiate Athletic Association (NCAA). Title
IX caused a great deal of concern when first
enacted, as many schools were worried they
could not remedy une qual participation by
men and women in various athletic programs
without going to considerable expense or
cutting successful programs to achieve gender

and effectively accommodated by the present
program (44 Fed. Reg. 71,418 [1979]).
The balance between a university’s interest
in maintaining a profitable and successful
athletic program and its need to comply with
Title IX is a delicate one. In Kelley v. Board of
Trustees, 35 F.3d 265 (1994), the U.S. Court of
Appeals for the Seventh Circuit addressed a
typical case involving these competing interests.
In Kelley, the men’s swim team at the University
of Illinois sued the university for violating
Title IX after the school cut the men’s, but
not the women’s, swimming program in an
attempt to eliminate unprofitable athletic pro-
grams and to reduce its budget deficit. Although
neither swim team was popular with spectators
and both programs were historically weak, the
university did not cut the wome n’s program
because its legal counsel advised that doing so
would violate Title IX. The court ruled that
eliminating the men’s program, but retaining
the women’s program, did not violate Title IX
even though the school treated the two programs
differently.
Title IX continues to have many critics, but
the effect it has had on women’s athletics is
practically unquestioned. Twenty-four years
after the enactment of Ti tle IX, the number of
female athletes at the Olympic Games in Atlanta
had risen to 287. The interest among spectators

college basketball, probably the highest-profiled
sport for female athletes, typically receives equal
attention as the corresponding men’s programs.
Likewise, softball and soccer have gained
popularity among individual schools as specta-
tor sports. Nevertheless, college and universities
continue to pour extensive resources into larger
men’s program, especially football and men’s
basketball.
Many athletic departments note that these
men’s programs earn more revenues based
upon a much larger fan base, so the support is
justified. Athletic departments often chose to
drop minor men’s sports instead of adding
women’s sports, citing the budgetary con-
straints. Advocates for women’s programs
counter that cutting the budgets of these
programs would not likely hinder the revenues
significantly and that it would allow athletic
programs to both add women’s programs and
retain smaller men’s programs.
Policies under the administration of Presi-
dent
GEORGE W. BUSH came under fire from
supporters of women’s athletics. During his
campaign, Bush stated his opposition toward
any racial or gender quotas, and some felt that
this policy could cause conflict with Title IX. In
2002 the secretary of education established the
Commission on Opportunity in Athletics, which

students enjoy equal educational opportunities
and freedom from discrimination. The need to
balance differing individual rights has led many
universities to enact policies purporting to
regulate or discipline certain types of speech,
and was the focus of many First Amendment
cases in the 1980s and early 1990s.
Racially and religiously motivated acts of
VANDALISM, intimidation, and violence on college
campuses began to attract increased attention in
the mid-1980s. Much of this activity involved
incidents such as the following:
n
A fraternity fund-raising “slave auction”
featuring fraternity members in blackface
who were “sold” to provide services to
bidders
n
The distribution at a state school of leaflets
warning, “The Knights of the
KU KLUX KLAN
Are Watching You”
n
A poster made by a student and hung on
her dormitory room door, listing “homos”
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
532 COLLEGES AND UNIVERSITIES
as a category of people who would be “shot
on sight”
In response, many universities adopted

speech that might be controversial or even
offensive but otherwise constitutionally pro-
tected. “It is firmly settled,” noted the court,
that under our Constitution the public
expression of ideas may not be prohibited
merely because the ideas are themselves
offensive to some of their hearers. These
principles acquire a special significance in the
university setting, where the free and unfet-
tered interplay of competing views is essen-
tial to the institution’s education mission.
The court then observed that because
Michigan’s policy was so vague that it encom-
passed even constitutionally protected speech,
and because this vagueness led to the potential
for arbitrary enforcement, the policy was
unconstitutional.
First Amendment protection is not limited
to the classroom setting alone. In Iota Xi
Chapter v. George Mason University, 993 F.2d
386 (1993), the U.S. Court of Appeals for the
Fourth Circuit held that George Mason Univer-
sity, a state university, had violated the Sigma
Chi Fraternity’s First Amendment rights by
suspending its privileges as a university organi-
zation after the fraternity held an event, called
the Ugly Woman Contest, that depicted women
in a particularly degrading manner. The court
held that skits, like motion pictures, movies,
theatrical productions, and nude dancing, are

a philosophy professor’s classes by setting up
“alternative” sessions for students who might
want to transfer out of the classes after the
professor had published letters to scholarly
journals that denigrated the intelligence of
blacks (Levin v. Harleston, 966 F.2d 85 [1992]).
Even so, not all speech by public university
employees is protected. Employees still may be
disciplined for speech that does not involve
an area of public co ncern, as the courts have
defined it. In Dambrot v. Central Michigan
University, 839 F. Supp. 477 (E.D. Mich. 1993),
aff’d, 55 F.3d 1177 (6th Cir. 1995), the district
court upheld the termination of a basketball
coach who used the term nigger in a locker-room
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COLLEGES AND UNIVERSITIES 533
pep talk. The university refused to renew the
coach’s employment contract, arguing that his
use of the term violated the university’s policy
on racial and ethnic harassment. Although the
court found that the school’s policy violated the
First Amendment (for the same reasons as in
Doe), it also found that the coach’s speech did
not involve an area of public concern.
A public institution may restrict religious
speech by faculty if failure to do so would violate
the First Amendment’s Establishment Clause
(Bishop v. Aronov, 926 F.2d 1066 [1991]). In
Bishop, the U.S. Court of Appeals for the

1971, the U.S. Supreme Court decided Lemon v.
Kurtzman, 403U.S.602,91S.Ct.2105,29L.Ed.
2d 745 (1971), which defined the scope of the
Establishment Clause. In Lemon, the court held
that a state policy or practice violates the
Establishment Clause if it fails to satisfy a three-
part test: First, the policy must serve a secular
purpose. Second, the primary effect of the policy
cannot be to advance or inhibit religion. Third,
the policy cannot foster an excessive entanglement
of the state with religion.
Unfortunately, the Lemon test is easier to
state than to apply, and it has led to numerous
lawsuits concerning the relationship of state-
funding programs to private religious organiza-
tions. Generally, a state law that provides
benefits to individuals without regard to reli -
gion does not violate the Establishment Clause
even if an individual uses the state benefits for a
religious purpose. For example, in Witters v.
Washington Department of Services for the Blind,
474 U.S. 481, 106 S. Ct. 748, 88 L. Ed. 2d 846
(1986), the U.S. Supreme Court held that a
blind Washington resident was eligible for state
vocational rehabilitation assistance, even though
he planned to use the funds to complete his
religious training at a Christian college. The
court held that payment of public assistance by
the state satisfied the Lemon test because the aid
was provided directly to the individual, was not

GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
534 COLLEGES AND UNIVERSITIES
that the university’s refusal to pay the publica-
tion costs of its newspaper, even though it paid
the costs of printing other student publications,
violated the Free Speech Clause of the First
Amendment. The university had convinced the
U.S. Court of Appeals for the Fourth Circuit
that it had a compelling interest in not funding
the newspaper: specifically, to avoid violating the
Constitution’s Establishment Clause, which
prohibits the government from establishing
or promoting religion. Before the U.S. Su-
preme Court, the university backed off on this
argument and instead stated that it had a right
to be selective in its choice of recipients of
public funds (i.e., university student fees). The
court considered both arguments and found
that the university’spolicyregardingthedis-
tribution of monies from student fees was
neutral, that is, it could not be seen as a policy
designed to advance religion; the court there-
fore concluded that the f ree spee ch rights of
the student publication prevailed and ordered
the university to pay the publication costs of the
Christian student group’s newspaper.
Termination of Employment Claims
Colleges and universities have often been the
subject of lawsuits by former employees who
have been terminated. Many of these claims arise

tional rights of an employee by denying him or
her tenure. For example, in Hendrich v. Board
of Regents of University of Wisconsin System,
274 F.3d 1174 (7th Cir. 2001), the complainant
claimed that the University of Wisconsin at
Whitewater had violated her equal protection
and due process rights when the school denied
her tenure. The U.S. Court of Appeals for the
Seventh Circuit denied her claims, finding that
she had failed to meet the necessary
BURDEN OF
PERSUASION
on these issues.
FURTHER READINGS
Census Bureau. Statistical Abstract of the United States.
Available online at />statab/; website home page:
(accessed May 16, 2009).
Eisenberg, Theodore. 2004. Civil Rights Legislation: Cases
and Materials. 5th ed. Charlottesville, VA: Michie.
Kaplin, William A., and Barbara A. Lee. 1997. Legal Guide
for Student Affairs Professionals. San Francisco: Jossey-
Bass.
———.1995.Law of Higher Education. 3d ed. San Francisco:
Jossey-Bass.
Perry, Barbara A. 2007. The Michigan Affirmative Action
Cases. Lawrence: University Press of Kansas.
“National Association of College and University Attorneys
and the Notre Dame Law School.” Journal of College
and University Law. Information available online at:
(accessed

a series of lectures on
INTERNATIONAL LAW at New
York Law School from 1912 to 1918. He
became president of
GEORGE WASHINGTON Uni-
versity in that same year and served in this
capacity for the next three years. In 1921 Collier
reentered the foreign service and served as
ambassador to Chile until 1928.
Collier was the author of several noteworthy
publications, including Collier on Bankruptcy
(1898); Collier on
CIVIL SERVICE Law (1901); The
Trusts: What Can We Do with Them—What
Can They Do for Us? (1900); and The Influence
of Lawyers in the Past and in the Future (1921).
He died April 15, 1956, in West Caldwell, New
Jersey.
COLLISION
The violent contact of one vehicle—such as an
automobile, ship, or boat—with another vehicle.
Collision insurance is a type of policy that
motorists purchase to cover property losses in
the event of a car accident.
A collision that does not result from the
NEGLIGENCE of either vessel involved is consid-
ered to be an inevitable accident. In the event
of an inevitable accident, neither party is liable
to the other, but each bears his or her own
individual losses. Exclusion from

1867 Born,
Lodi, N.Y.
1892 Admitted to New York
bar and established
practice in Auburn, N.Y.
1898 Collier on Bankruptcy first published
1898
Spanish-American War
1903 Served as special assistant to the U.S. attorney
general, specializing in antitrust legislation
1905–09
Served as
U.S. minister
to Spain
1912–18 Presented lectures on
international law at New York Law School
1914–18
World War I
1918 Became president of George
Washington University
1921–28 Served
as ambassador
to Chile
1939–45
World War II
1961–73
Vietnam War
1950–53
Korean War
1956 Died,

number, because it will no longer be necessary
for persons seeking a divorce to resort to such
measures.
The fundamental societal objection to col-
lusion is that it promotes dishonesty and
FRAUD,
which, in turn, undermines the integrity of the
entire judicial system.
COLOR
The appearance or sembl ance of a thing, as
distinguished from the thing itself.
The thing to which the term color is applied
does not necessarily have to possess the
character imputed to it. A person who holds
land under
COLOR OF TITLE does not have actual
title to it.
COLOR OF LAW
The appearance of a legal right.
The act of a state officer, regardless of
whether or not the act is within the limits of his
or her authority, is considered an act under
COLOR OF LAW if the officer purports to be
conducting himself or herself in the course of
official duties. Under the
CIVIL RIGHTS Act of
1871 (42 U.S.C.A. § 1983), color of la w is
synonymous with
STATE ACTION, which is con-
duct by an officer that bears a sufficiently close

grantee.
It has been held that in order to pass color
of title, the instrument appearing to pass title
must be in good form, duly executed, and
profess to pass good title.
COLORABLE
False; co unterfeit; something that is false but has
the appearance of truth.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
COLORABLE 537