Partial Reference of Laws, Acts and Terms
Which Impact Higher Education
UNITED STATES CONSTITUTION
ARTICLE I
Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To make all Laws which shall be necessary and proper for carrying into Execution for the foregoing Powers, and all other Powers vested by this constitution in the Government of the United States, or in any Department or Officer thereof.
Section 9. * * * No Bill of Attainder or ex post facto Law shall be passed.
Section 10. No state shall * * * pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
ARTICLE II
Section 1. The executive Power shall be vested in President of the United States of America. * * *
ARTICLE III
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; - to all Cases affecting Ambassadors, other public Ministers and Consuls; - to all Cases of admiralty and maritime Jurisdiction, - to Controversies to which the United States shall be a party; - to Controversies between two or more States; - between a State and Citizens of the same State claiming Lands under the Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
ARTICLE IV
Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.
Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.
ARTICLE V
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
ARTICLE VI
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
AMENDMENT I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
AMENDMENT IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
AMENDMENT V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
AMENDMENT VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
AMENDMENT VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
AMENDMENT VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
AMENDMENT XI
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
(Passed by Congress March 4, 1794. Ratified February 7, 1795. Note: Article III, section 2, of the Constitution was modified by amendment 11.)
AMENDMENT XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
(Passed by Congress January 31, 1865. Ratified December 6, 1865. Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment
AMENDMENT XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 5. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
(Passed by Congress June 13, 1866. Ratified July 9, 1868. Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.)
*Check tab for pulldown pages for the following: Terms and Acts.
FEDERAL LEGISLATION
Age Discrimination in Employment Act of 1967
(ADEA), as amended. 29 U.S.C. § 621 et seq., prohibits discrimination with respect to persons ages 40 and older. This Act applies to employers that have twenty or more employees and who engage in interstate commerce.
The Americans with Disabilities Act of 1990
(ADA), 42 U.S.C. §§ 12101-12217, prohibits discrimination against any qualified individual with a disability because of that disability. The ADA is based on the anti-discrimination principles of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. It extended coverage to both private and public employees and employees who are associated with disabled individuals (i.e., an immediate family member).
Copyright Act
(Also see Article, Section 8 of the U.S. Constitution). 17 U.S.C. § 107, addresses fair use of copyrighted work which includes use for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship or research.
The Crime Awareness and Campus Security Act and the Campus Security Act
Amending the Higher Education Act of 1965 (at 20 U.S.C. § 1092 (f)), the Crime Awareness and Campus Security Act requires institutions to provide information on the number and types of crimes on and near campus (Title II of Pub. L. No. 101-542 (1990).
The Campus Security Act (also known as the Clery Act), as amended by the Higher Education Amendments of 1992 (Pub. L. No. 102-325), imposes requirements on institutions for preventing, reporting and investigating sex offenses on campuses.
Employee Retirement Income Security Act of 1974
(ERISA or the Pension Reform Act), 29 U.S.C. § 1001 et seq., establishes minimum “standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans. These requirements apply to private institutions.
Equal Pay Act of 1963, enacted as § 6(d) of the Fair Labor Standards Act of 1938
(EPA), 29 U.S.C. § 206(d), prohibits discrimination in pay on the basis of sex. Applies as long as an employer is engaged in interstate commerce. For pay issues related to race discrimination, employees must utilize Title VII.
The Fair Labor Standards Act
(FLSA), 29 U.S.C. § 201 et seq., establishes the minimum hourly wage and overtime pay requirements for certain employees. The law does not apply to independent contractors. The higher pay rate prevails if federal and state law conflict. Requires records to be kept of nonexempt employees’ hours worked and wages paid.
The Family Educational Rights and Privacy Act
(FERPA), 1974, 20 U.S.C. § 1232 (g), also called the Buckley Amendment, applies to any educational institution receiving federal funds. The Act contains requirements regarding the maintenance and disclosure of student records.
The Family and Medical Leave Act of 1993
(FMLA), 29 U.S.C. §§ 2601 et seq., applies to organizations that have had fifty or more employees within a seventy-five mile radius for each working day during each of twenty weeks or more during the preceding year. Establishes the ability of employees to take up to twelve weeks of unpaid leave in any twelve-month period for: a) the birth of a child; b) the adoption of a child or placement for foster care; c) care for a spouse, child or parent with serious health conditions; or d) serious health condition of the employee. Employees are entitled to reinstatement to an equivalent position once they return from FMLA leave and employers must maintain the health benefits to which the employee was entitled prior to taking FMLA leave.
The Federal Tort Claims Act
Federal legislation that determines the circumstances under which the United States waives its sovereign immunity and agrees to be sued in court for money damages. The federal government retains it immunity in cases of intentional torts by its employees or as a result of a “discretionary function” of a federal employee or agency.
42 U.S.C. §§ 1981, 1983
Section 1983 of the Federal Civil Rights Act prohibits any person acting under color of state law from depriving any person of their constitutional rights or rights issued under federal law. Section 1981 applies to employment contracts and, unlike Section 1983, private actors. It also is not limited to individuals acting under color of state law. Neither section applies to the federal government – although the federal government can be sued directly under the Constitution for violations.
The Federal Unemployment Tax Act
(FUTA), 26 U.S.C. § 3301 et seq., establishes a federal program to compensate people temporarily unemployed. States administer. Exclusions include employees of churches or religious conventions, associations and/or organizations and entities primarily operated, supervised, controlled or principally supported by a church or religious convention or association.
The National Labor Relations Act
(LMRA), as amended by the Labor Management Relations Act, 29 U.S.C. § 141 et seq., governs unionization and collective bargaining matters in the private sector, including private education. States are also subject to the dictates of the act. The NLRA protects the rights of employees to organize, or choose not to organize, and protects commerce in times of labor disputes. Managerial employees are not protected by this Act.
Occupational Safety and Health Act of 1970
(OSHA), 29 U.S.C. § 651 et seq., requires private (postsecondary) institutions to “furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. Health and safety standards promulgated by the U.S. Secretary of Labor (§ 665) must also be followed, as well as a retaliation clause protecting employees who report violations.
Section 504 of the Rehabilitation Act of 1973
29 U.S.C. § 794: “No otherwise qualified individual with a disability in the United States… shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
Title VI of the Civil Rights Act of 1964
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
Title VII of the Civil Rights Act of 1964
As amended, 12 U.S.C. § 2000e et seq., prohibits discrimination on the basis of race, color, religion, sex, or national origin (extended in 1972 to cover private and public educational institutions).
It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Title IX of the Education Amendments of 1972
a) No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance….
Trademarks
Section 43 (a) of the Lanham Act, 15 U.S.C. § 1125 (a)., creates a federal cause of action for unfair competition in interstate commerce activities. It forbids unfair trade practices involving infringement (use) of trade dress, service marks or trademarks. U.S.C. § 1127 defines trademark as any word, name, symbol or device, or any combination thereof, used to identify and distinguish goods, including a unique product, from those manufactured or sold by others.
Bona fide – Latin term meaning “good faith.” Generally used to note a party’s lack of bad intent or fraudulent purpose.
Class Action Suit – Allows a member of a class to sue as representatives on behalf of the whole class provided that: a) the class is so large that joinder of all parties is impractical; b) there are questions of law or fact common to the class; c) the claims or defenses of the representatives are typical of the claims or defenses of the class; and, d) there is some danger that of inconsistent verdicts or adjudications if the class action were prosecuted as separate actions. Most states allow class action suits under the same or similar circumstances.
Collateral Estoppel – Also known as issue preclusion. The idea that once an issue has been litigated, it may not be retried. Similar to the doctrine of Res Judicata.
Due Process Clause – The clauses of the Fifth and Fourteenth Amendments of the Constitution that guarantee citizens of the United States “due process of law.” The Fifth Amendment applies to the federal government and the Fourteenth applies to the states.
Due Process of Law – The idea of “fair play” in the application of law to citizens. Substantive due process is just plain fairness. Procedural due process applies to adequate procedural safeguards in place and utilized to protect an individual’s liberty or property interests.
Enjoin – (see Injunction).
Equal Protection Clause – The clause within the Fourteenth Amendment that prohibits a state from denying any person within its jurisdiction equal protection of its laws.
Establishment Clause – The clause of the First Amendment that prohibits Congress from making “any law respecting an establishment of religion.” This clause has been interpreted to create a “wall of separation” between church and state. The “Lemon test” asks whether an action in question has a secular purpose, whether its primary effect promotes or inhibits religion, and whether it requires excessive entanglement between church and state.
Ex Post Facto Law – A law that punishes as criminal any action that was not a crime at the time it was performed. Prohibited by Article I, Section 9, of the Constitution.
Exclusionary Rule – Constitutional limitation on the introduction of evidence that states that evidence derived from a constitutional violation must be excluded from trial.
Free Exercise Clause – The clause of the First Amendment that prohibits Congress from interfering with citizens’ rights to the free exercise of their religion. Through the Fourteenth Amendment, it also has been made applicable to the states and their sub-entities. The Supreme Court has held that laws of general applicability that have an incidental effect on persons’ free exercise rights are not violative of the Free Exercise Clause.
Incorporation Doctrine – By its own terms, the Bill of Rights applies only to the federal government. The incorporation Doctrine states that the Fourteenth Amendment makes the bill of rights applicable to the states.
Injunction – A court order that requires a party to do or refrain from doing some particular action.
Issue Preclusion – (see Collateral Estoppel).
Jurisdiction – The power of a court to determine cases and controversies. The Supreme Court’s jurisdiction extends to cases arising under the Constitution and under federal law. Federal courts have the power to hear cases where there is diversity of citizenship or where a federal question is involved.
Negligence per se – Negligence on its face. Violations are considered negligence per se because no careful person would have been guilty of it.
Overbroad – A government action is overbroad if, in an attempt to alleviate a specific evil, it impermissibly prohibits or chills a protected action.
Per Curiam – Latin phrase meaning “by the court.” Typically used in court reports indicating that an opinion was written by the court rather than by a single judge or justice.
Preemptive Doctrine – Doctrine that states that when federal and state law attempt to regulate the same subject matter, federal law prevents the state law from operating. Based on the Supremacy Clause of Article VI, Clause 2, of the Constitution.
Prior Restraint – Restraining a publication before it is distributed. In general, constitutional law doctrine prohibits government from exercising prior restraint.
Pro Se – A party appearing in court, without the benefit of an attorney, is said to be appearing pro se.
Remand – The act of an appellate court in returning a case to the court from which it came for further action.
Remedies – There are two general categories of remedies, or relief: legal remedies, which consist of money damages (compensatory and punitive), and equitable remedies, which consist of a court mandate that a specific action be prohibited or required.
Res Judicata – The judicial notion that a claim or action may not be tried twice or re-litigated, or that all causes of action arising out of the same set of operative facts should be tried at one time. Also known as claim preclusion.
Sovereign Immunity – The idea that the government cannot be sued without its consent. It stems from the English notion that the “King could do no wrong.” This immunity from suit has been abrogated in most states and by the federal government through legislative acts known as “tort claims acts.”
Standing – The judicial doctrine that states that in order to maintain a lawsuit a party must have some real interest at stake in the outcome of the trial.
Statute of Limitations – A statute of limitations provides the time period in which a specific cause of action may be brought.
Summary Judgment – Also referred as pretrial judgment. Similar to a dismissal. Where there is no genuine issue as to any material fact and all that remains is a question of law, a judge can rule in favor of one party or the other.
Supremacy Clause – Clause in Article VI of the Constitution that states that federal legislation is the supreme law of the land. This clause is used to support the Preemption Doctrine (see above).
Tort – a wrong; a private or civil wrong or injury resulting from a breach of a legal duty that exists by virtue of society’s expectations regarding personal conduct (rather than by contract). Essential elements: existence of a legal duty owed by the defendant to a plaintiff; breach of that duty; and causal relationship between the defendant’s breach/conduct and the resulting damage to plaintiff.
Vacate – The act of annulling the judgment of a court either by an appellate court or by the court itself. The Supreme Court generally will vacate a lower court’s judgment without deciding the case itself, and remand the case to the lower court for further consideration in light of some recent controlling decision.
Void-for-Vagueness Doctrine – A judicial doctrine based on the Fourteenth Amendment’s Due Process Clause. In order for a law that regulates speech, or any criminal statute, to past muster under the doctrine, the law must make clear what actions are prohibited or made criminal. Under this principle, individuals of average intelligence should not have to guess at the meaning of a law.
Writ of Certiorari – The device used by the Supreme Court to transfer cases from the appellate court’s docket to its own. Since the Supreme Court’s appellate jurisdiction is largely discretionary, it need only issue such a writ when it desires to rule in the case.