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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.

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Religious Institutions and the Battle Over the Affordable Care Act’s Contraception Mandate

The Patient Protection and Affordable Care Act, better known as the Affordable Care Act (ACA), was signed into law by President Barack Obama on March 23, 2010, and later upheld by the United States Supreme Court on June 28, 2012. The law was written to accomplish a number of things, among them to increase health insurance access and quality. One major point of contention with the law was a contraception mandate – a requirement for all employers and educational institutions to provide female contraception coverage. The law noted one exception to those under its influence – churches and houses of worship. The law provided four requirements to be considered a religious employer and to receive the exemption:

(1) The inculcation of religious values is the purpose of the organization.

(2) The organization primarily employs persons who share the religious tenets of the organization.

(3) The organization serves primarily persons who share the religious tenets of the organization.

(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code of 1986, as amended.

Much to the disapproval of many religious organizations, the requirements to be exempt from the mandate did not cover religious schools, religious hospitals, religious charities, and other businesses and organizations owned and controlled by religious groups. Even though many private religious schools’ missions cover more than simply the inculcation (teaching) of religious values, their exemption status was not granted. Organizations that failed to provide health coverage would be subjected to a fee. By mandating contraception coverage, many of these organizations felt their religious tenets were being compromised.

The Obama Administration offered an opt-out compromise allowing religious nonprofits to explicitly state their opposition to the contraception mandate and to have the organizations’ insurance companies cover the cost of the contraceptives at no financial burden to the nonprofit. Several religious nonprofits still felt this compromise was not satisfactory as they felt responsible for the providence of contraceptives. This resulted in multiple lawsuits.

Colorado Christian University (CCU), a private religious institution in Denver, Colorado, filed a lawsuit in 2011 against the United States Department of Health and Human Services (HHS) related to the contraception mandate. The case was rejected but then renewed again in 2013. In 2014 CCU was granted an injunction from the contraception mandate by the Colorado district court. The result was that CCU would not have to pay a fee for failing to provide contraception health care until later court rulings affected the lawsuit.

The 10th U.S. Circuit Court of Appeals heard a lawsuit against the contraception mandate by a private corporation, Hobby Lobby. Burwell v. Hobby Lobby was heard by the United States Supreme Court and a decision was rendered in 2014. The court ruled 5-4 in favor of Hobby Lobby allowing closely held for-profit religious corporations to be exempt from the contraception mandate if there was a less restrictive means of accomplishing the law’s intent. The decision cited the Religious Freedom Restoration Act of 1993 as evidence.

In Oklahoma an appeal of a similar lawsuit to CCU’s was rejected in 2015. The 10th U.S. Circuit Court of Appeals ruled against four Oklahoma Christian universities who were seeking an exemption from the contraception mandate. The court decided that the law and its religious exemptions do not violate the schools’ religious freedom. This ruling upheld the accommodation created by the Obama Administration.

With the contraception mandate still in effect and the compromise offering the best alternative for many religious institutions, dissenting schools were forced to utilize a few different options: compliance with the law, lawsuits challenging the law and seeking injunctions, or not paying the fee. On July 31, 2015, Wheaton College, a private Christian institution, ended their student health insurance, utilized by a quarter (approximately 3,000 individuals) of the student population due to conflicts with their centrally held religious beliefs.

Currently both sides of the issue appear to be at an impasse. In May of 2016, the Supreme Court sent the case back to the appellate courts, asking the federal appeals courts to reach a compromise on the issue. With the new Trump administration coming into power, there are likely to be some significant changes to how the law exists and gets enforced during his tenure. Provided a 9th Justice is still yet to be added, the Supreme Court might still decide on the contraception mandate in the future.

This post was co-authored by Mr. Andy Heiber and Dr. David Nguyen. Mr. Heiber is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.


Shaped by Challenges: Affirmative Action in Higher Education Admissions

Diversity within the U.S. public education system is an ongoing topic of dissent and debate. Brown v. Board of Education of Topeka, KS was a landmark case decided in 1954 that overturned the “separate but equal” ruling of Plessy v. Ferguson in 1896. Affirmative action in American education began from the 1960’s Civil Rights Movement and President John F. Kennedy’s first issuance of the order in 1961. That executive order was to ensure equal opportunity employment “without regard to their race, creed, color, or national origin” for government jobs. Affirmative action has impacted federally funded higher education institutions’ policies regarding the employment of faculty and staff, as well as student admissions. The commitment to increased diversity has sparked dissention from some individuals and groups who feel they are disadvantaged by affirmative action policies resulting in many legal cases. These cases have challenged and shaped the way affirmative action is used and interpreted within the field.

In the case of Regents of Univ. of California v. Bakke (1978), the U.S. Supreme Court heard the complaint of Bakke, a white, male student who was denied admission in both 1973 and 1974 to the University of California Davis (UC Davis) Medical School despite a high-achieving academic record. At the time UC Davis had two admissions programs – general admissions and special admissions. Under the special admissions process, 16 places in the incoming class were reserved for students who were considered as economically or educationally disadvantaged or a member of a minority group. Bakke argued that the special admissions program was a violation of the Equal Protection Clause of the Fourteenth Amendment. While the Court ruled in favor of Bakke stating that racial, quota-based admissions processes were unconstitutional, it found that diversity in higher education was a compelling state interest and some applications of affirmative action within admissions are constitutional so long as they are narrowly tailored.

In the case of Grutter v. Bollinger (2003), the U.S. Supreme Court heard the complaint of Grutter, a white, female student who was denied admission to the University of Michigan Law School (UM) who claimed she was rejected on the basis of her race. Grutter argued this was discrimination and a violation of the Fourteenth Amendment. UM stood by its commitment to diversity and explained that its admissions procedure did not restrict the types of diversity that were considered in admissions to only race and ethnicity. It adopted a holistic view of admissions and only considered race as a “plus” not as a determinant. The court ruled that UM’s use of race in admissions decisions and commitment to obtaining the educational benefit from a diverse student population was constitutional.

In the case of Fisher v. University of Texas at Austin (2016), the U.S. Supreme Court heard the complaint of Fisher, a white, female student who was denied admission to the University of Texas at Austin (UT Austin) undergraduate program in 2008. Fisher claimed that the consideration of race in admissions disadvantaged her and was a violation of the Equal Protection Clause of the Fourteenth Amendment. In 2008, UT Austin’s admissions policy offered admission to all Texas high school students who graduated in the top 10% of their class, required by the Texas Top Ten Percent Law. The remaining spaces in the entering class, approximately 25%, were filled by considering the applicant’s “Academic Index” and their “Personal Achievement Index.” The Personal Achievement Index was a holistic review of the student containing many factors, one of which was race. UT Austin defended that race-neutral programs had not achieved the University’s diversity goals. The Court ruled that UT Austin’s admissions policy was constitutional with the University’s continued obligation to review their standards to ensure that race is no greater a factor in admission than necessary. It was likely that the Top Ten Percent Law was more of a factor in Fisher’s rejection than the consideration of race.

As for the future of affirmative action in higher education, consideration of race in admission decisions has been lawfully banned in many states. Justice O'Connor has expressed her belief that race-conscious admissions policies have an expiration date. She is unwilling to support a permanent justification for racial preferences. Race-neutral policies could be the goal, but current strategies do not appear to be as effective at achieving diversity in student populations. Although affirmative action and related rulings provide guidelines for universities to achieve a diverse student populations reflective of the U.S. population, there is still much work to be done within higher education to achieve equity and diversity.

This post was co-authored by Ms. Lindsay Stack and Dr. David Nguyen. Ms. Stack is a Hall Director at the University of North Dakota and a masters student in the UND Higher Education program.


Iowa State University Loses Marijuana T-Shirt Case

As reported in The Des Moines Register (available here), a federal appeals court has ruled that Iowa State University officials violated students' First Amendment rights in blocking their printing of T-shirts with a design that contained the school's mascot and a marijuana leaf. The students belonged to a student organization that advocated the legalization of marijuana use under state and federal laws. The opinion from the U.S. Court of Appeals for the Eighth Circuit is available here.

The university sought to block the production of the T-shirts on the basis that it could control distribution of images trademarked by the university, even if it allowed other student organizations to use such images. Iowa State permitted student organizations to use the institution's mascot and other trademarked images if certain conditions were satisfied. Initially, the institution gave permission for the student group to use the mascot image on its T-shirt. After media coverage about the group's planned use of the university's mascot garnered negative attention, including from lawmakers, institutional officials moved to revoke permission for the group to use the mascot on its T-shirts. The university argued that political push back did not inform the decision to deny the students use of the mascot, but the court did not accept these arguments. Instead, the court determined that institutional officials had engaged in impermissible viewpoint discrimination by seeking to revoke the use of the mascot based only on concern or disagreement with the student group's views on the legalization of marijuana.

The university argued that even if officials engaged in viewpoint discrimination, they committed no violation of the students' First Amendment rights because the "trademark licensing regime should be considered government speech."  As such, according to the university, it could, via its trademark rights, control the use of university images by student organizations (i.e., permitting use by student groups offering views condoned or favored by institutional officials). However, according to the court, the "government speech doctrine does not apply if a government entity has created a limited public forum for speech."  Having created a limited public forum for student speech in which students could use images trademarked by the university, the institution could then not pick and choose messages with which it agreed and disagreed in allowing students to use trademarked images.


Column in AAUP's Academe on Discharge of Student Loan Debt in Bankruptcy

For the January/February issue of AAUP's Academe, I have a column on the issue of the undue hardship standard as a requirement for the discharge of student-loan debt in bankruptcy proceedings.  The column is available here.


Federal Appeals Court Says "No" To Missouri Technical College Drug Testing All Students

We've had several blog posts, including here, about ongoing litigation in Missouri over a suspicionless drug testing program for incoming students at a two-year public college (Linn State).  In December 2016, the U.S. Court of Appeals for the Eighth Circuit issued an en banc decision (i.e., a decision by the full court and not a three-judge panel), available here, in which it (thankfully) invalidated parts of this testing regime based on Fourth Amendment protections.

Under the challenged policy, all incoming students were required to submit to a drug test in the form of a urinalysis.  Linn State operates multiple vocational programs in which students face potential safety risks from working with machinery or live electricity, but it also offers programs in which students engage in academic studies that did not pose such concerns.  The drug testing policy in question applied to all incoming students no matter the program in which they enrolled. According to the opinion, the college president enacted the policy after a survey of members of the institution’s advisory council indicated their support for drug testing all incoming students.  The policy was not started in response to the identification of any kind of systematic problems involving drug or alcohol use by students.  Absent a waiver from the college, students who refused to participate in drug testing could not enroll.

A federal district court upheld the drug-testing requirement for students enrolled in certain programs that presented particular safety risks, but it held that suspicionless testing of other students constituted an impermissible search under the Fourth Amendment.  Reversing in part, a panel for the Eighth Circuit initially decided that the school could implement the drug testing program for all incoming students without regard to program enrollment.  Agreeing to review the case en banc, the full court determined that the policy could not be applied to students in programs that did not raise particularized safety risks.

In its opinion, the Eighth Circuit explained that while searches under the Fourth Amendment typically require individualized suspicion, the existence of “special needs,” such as safety considerations, may warrant the use of suspicionless drug testing.  Along with safety issues, the school argued that the testing policy satisfied the special needs requirement in seeking to achieve the overall benefits of a drug-free environment for members of the campus community.  It also contended that the policy helped prepare students for drug testing regimes common in workplace environments.  The court rejected these various arguments in relation to students enrolled in programs involving no heightened safety risks.  In disallowing the policy under such circumstances, the court discussed that the school had identified no crisis or seeming epidemic of drug use among students.  Looking to a case in which the Supreme Court analyzed the permissibility of suspicionless drug testing of federal employees on the basis of job duties, National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the Eighth Circuit stated that the districted court appropriately engaged in a program-by-program analysis and the exclusion from testing of students enrolled in programs not raising special safety concerns.

Hopefully this case will serve as a useful caution to other institutions that might be considering a similar ill-advised testing program as that struck down in this case.