"It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail 'the four essential freedoms' of a university--to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study."
--Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)
I. Legal Standard of Review
In general, the legal standard of review for governmental decisions (such as classroom policies set by faculty members at a public institution) is the rational basis test. In other words, the decisions faculty members make on how to conduct their classes are likely to be upheld in a court of law if they are reasonable, meaning that they are not arbitrary and capricious, based on malice, or based on illegal discrimination (e.g., based on an individual’s race, religion, gender, disability, or national origin). A faculty member should always be prepared to articulate a rational justification for any classroom policy he or she imposes. For example, a faculty member may proscribe certain conduct in the classroom because it would be disruptive to the teaching or educational process.
For the most part, courts leave grading policies to the discretion of the faculty member, within the academic standards established by the institution. Grade challenges by students are not likely to be successful in court unless there is an underlying violation of the student's right, such as illegal discrimination. One court has found that a faculty member's award of a grade was an exercise of his First Amendment right to free speech, and the institution therefore violated his free speech when it attempted to force him to change the grade. The court also held, however, that the university could have changed the student's grade itself.
Generally, a grading policy will be enforceable if it is based on the students' performance and other standards relevant to the educational process. A grade based in part upon an unrelated factor, such as what the faculty member thinks of the student as a person, is less likely to be enforceable. Clearly unenforceable policies are those that are arbitrary, discriminatory, or malicious.
III. Special Considerations
1. Illegal Discrimination in General
Faculty members should make sure that their classroom policies do not have the effect (intentional or unintentional) of illegally discriminating on the basis of race, gender, national origin, religion, or disability. Differential treatment based on one of these "protected" classes will result in the application of "strict scrutiny" by a court and require a "compelling governmental interest" to justify the practice. An otherwise discriminatory practice must be justified by a very important reason.
Policies likely to involve illegal discrimination against a protected class:
The Americans with Disabilities Act requires that the University provide reasonable accommodations to those students who identify themselves as disabled and request such accommodation. As students are not required to disclose a disability, faculty members should not ask a student about whether he/she is disabled. However, if a student identifies him or herself as disabled and requests a reasonable accommodation from a faculty member, the faculty member should refer the student to the Disability Services Office, which will register the student and provide necessary assistance or information on accommodations specific to his/her disability. (See University Policy 501). Classroom policies should be flexible enough to accommodate disabilities.
Policies likely to involve ADA protections:
3. Religious Accommodation
University officials will make a good faith effort to accommodate a student’s religious practice or belief, unless it would create an undue hardship. University policy requires that a student be provided reasonable accommodation for a sincerely held religious belief, including a minimum of two excused absences each academic year for attendance at religious observances required by the student’s religious practices or belief. A student must submit a request form so that the faculty member will have opportunity to approve an excused absence in advance.
In addition, a student should be allowed to make up any tests or missed work, without penalty, due to an excused absence for a religious observance. Accordingly, a faculty member’s classroom policies should be flexible enough to accommodate student absences for religious observances.
Policies likely to involve religious accommodations:
Title IX of the Education Amendments of 1972 (Title IX) prohibits sex discrimination—including discrimination on the basis of pregnancy, childbirth and parental status—at all education levels, including postsecondary institutions. On June 25, 2013 the U.S. Department of Education (DOE) issued guidance on supporting the academic success of pregnant and parenting students under Title IX. This guidance states that it is illegal under Title IX to exclude pregnant students from participating in any part of an educational program, including extracurricular activities. In addition, a University must treat pregnancy as it treats other medical leave situations, which means a student returning after pregnancy leave must be reinstated to the status she held when her leave began.
Pursuant to DOE’s guidance, the University must excuse a student’s absences because of pregnancy or childbirth for as long as the student’s doctor deems the absences medically necessary, and the University should offer the student reasonable alternatives to simply making up missed work. For example, a student might be allowed to retake a semester course, take part in an on-line course recovery program, or allowed additional time in a program to continue at the same pace and finish at a later date, especially after longer periods of leave. In the end, a pregnant student should be allowed to choose how to make up missed work or to otherwise proceed with her course of study without excessive penalty following her medically required leave.
Updated October 16, 2013