Discrimination in Education: Public Versus Private Universities

Discrimination in Education: Public Versus Private Universities

Bingham, Tacasha


A college can enroll students based on conduct the college promotes, or expel students based on conduct it opposes, as long as the college is a private institution. University of the Cumberlands, formerly known as Cumberland College, is a liberal arts college affiliated with the Kentucky Baptist Convention.1 The university expelled a student on April 8, 2006 after he announced that he was gay on MySpace.com, a social networking site. The university’s student handbook states that students may be asked to leave campus for participating in pre-marital sex or homosexual behavior.2

A controversy surrounds whether the university was a private institution at the time it dismissed the student. While private colleges may discriminate in admission and expulsion procedures, a public university may not. This commentary explores the differences in public and private universities, and addresses the reasons why truly private universities may discriminate in their admission and expulsion policies.

University of the Cumberlands was not a truly private university when it expelled a student based on his sexual orientation. This commentary addresses the reasons why the university was not a private institution at the time it expelled the student, and the measures that could be taken against the university for maintaining discriminatory policies and procedures. Finally, this commentary concludes that universities should determine their public or private status before taking discriminatory actions against their current and future students.


A. Public Universities

A public university is predominantly supported by state funds. Most public universities are state universities founded and operated by state governments. Since public universities are an extension of the government, they must adhere to strict policies and may not discriminate in acceptance and dismissal procedures.

The Supreme Court has also established other areas in which public universities may not discriminate against students. In Healey v. James,3 a state supported college refused to recognize a group of students who wished to organize a local chapter of the Students for a Democratic Society. The president of the university denied the students recognition of their chapter because he did not agree with the group’s philosophy. The Supreme Court held that the college was not entitled to deny the group recognition because the college was acting as an instrumentality of the state.

The college could not restrict speech or associations simply because it believed the group’s views were repugnant.4 Therefore, public universities may not deny student groups university recognition merely because the university does not agree with the organization’s viewpoints.

B. Private Universities

A private university is supported by tuition, endowment, and donations from alumni and friends, and operates without the control of any government entity. Since private universities are not an extension of the government, they have a freer hand in setting admission and expulsion polices than do public universities.5 For example, Bob Jones University, in South Carolina, refused to admit African-American students until 1971. In addition, until the year 2000, the university prohibited interracial relationships based on the belief that they were forbidden by the Bible.6


Private universities are free to discriminate in admission and expulsion procedures because of two rights set forth in the First Amendment: expressive association and the free exercise of religion.

A. Expressive Association

Expressive association is defined in Boy Scouts of America v. Dale1 as a First Amendment right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. According to the Supreme Court, “this right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas.”8

In Dale, the Boy Scouts of America revoked an adult leader’s membership because of his sexual orientation. The official position of the Boy Scouts was that avowed homosexuals could not be group leaders. The Court determined that three criteria must be met for an organization to claim protection of expressive association: (1) the group must engage in “expressive association,” (2) the forced inclusion of the excluded member would significantly affect the group’s ability to advocate public or private viewpoints, and (3) the presence of the excluded member would burden the group’s desire to discourage the conduct for which the person was excluded.9 The Court ultimately held that the Boy Scouts satisfied each of these requirements, and to make them accept the homosexual leader would infringe on their First Amendment right of expressive association.10

Private universities wishing to exclude homosexuals from their institutions meet the three-pronged test: (1) private universities engage in “expressive association” because they serve to educate students in various disciplines, (2) if a private university asserts that homosexual conduct is inconsistent with its values, then forcing it to include a homosexual student would run counter to the views the university seeks to assert, and (3) the presence of a homosexual student may send a message that the university accepts homosexual conduct as a legitimate form of behavior when it, in fact, does not.

“Religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection.”” Therefore, a truly private university may exclude students who do not conform to the university’s values and beliefs under the university’s First Amendment right of expressive association.

B. Free Exercise Clause

The Free Exercise Clause provides that “Congress shall make no law … prohibiting the free exercise” of religion.12 That clause is an absolute prohibition against governmental regulation of religious beliefs.13 In other words, the state or federal government cannot enact legislation that mandates a religious institution to adhere to a law that is contrary to its religious beliefs.

In Gay Rights Coalition of Georgetown U. Law Ctr. v. Georgetown U.,14 the court held that, in order to invoke the Free Exercise Clause to gain exemption from a governmental regulation, one must establish that forced compliance with the regulation will impose a burden on his or her religious exercise.

Additionally, “an exemption accommodating the religious practice must be granted unless the government can demonstrate that it has a compelling or overriding interest in enforcing the challenged regulation.”15 In other words, a person or institution cannot be forced to comply with any government regulation that places a burden on religious practices. However, if the government has a greater interest in forcing compliance with the regulation, then those burdened by the regulation are obligated to comply with it nonetheless.

Gay Rights Coalition addressed a dispute that arose when Georgetown University, a private institution, denied two student homosexual rights groups “university recognition” and access to the facilities and services. The university’s action was challenged under the Human Rights Act. The Human Rights Act, passed in the District of Columbia, prohibited sexual orientation discrimination.

The Appellate Court for the District of Columbia held that the enforcement of the Human Rights Act imposed a burden on Georgetown’s religious practices. However, the court also found that the state’s interest in eradicating sexual orientation discrimination outweighed the burden that compliance with the Human Rights Act would impose on Georgetown’s religious exercise. Therefore, the university’s free exercise defense did not exempt it from compliance with the statute.

The District of Columbia and the state of Wisconsin are the only jurisdictions that afford a judicial remedy for homosexual or bisexual discrimination.16 If other states adopt similar laws prohibiting discrimination on the basis of sexual orientation, then private, religious institutions may lose their First Amendment claims if a court finds that the state’s interest is greater than the burden imposed on religious practices.


University of the Cumberlands was once a private college supported by private funding. However, in 2006, the Kentucky legislature extended 11 million dollars in state funds to the university for a planned pharmacy school.17 Arguably, this move to collect government funding took the university out of a private setting and into the public realm. This commentary maintains that, because the university is now supported by state funding, it no longer has the right to discriminate in admission and expulsion procedures.

If this dispute would have had the opportunity to develop in court, the university probably would have been expected to adhere to public university standards.18 In order for a public university to justify prohibition of a particular expression of opinion, it must be able to show that its action was prompted by something more than a mere disagreement with the opinion.19 Students’ rights to freedom of expression cannot be abridged absent material and substantial interference with discipline and order in the school.20

Under public university standards, the University of the Cumberlands cannot expel the gay student simply because it does not agree with his sexual practices. Since the student’s conduct merely involved his expression of sexual orientation, it does not interfere with discipline or order in the school. Thus, the university should not have expelled the student.

A public university may not impose content-based restrictions on speech, and it may not use its student body recognition process to comment upon the tightness or wrongness of homosexual conduct, even though a private university is under no such constitutional restriction.21 The student had a right to express his sexual preferences because the university is arguably a public forum under governmental control.

In Gay Student Services v. Tex. A&M U.,22 the United States Court of Appeals for the Fifth Circuit held that a state supported university could not deny “university recognition” to a student organization when the refusal to grant recognition was based solely on the university’s disagreement with the group’s ideas.

If the law will not allow a public university to discriminate in granting “university recognition” to its student organizations, surely the law will not allow a public university to discriminate in who it expels from the university.

Ultimately, a court would probably find that the University of the Cumberlands is now a public university. Accordingly, the University cannot impose its discriminatory regulations on the gay student. The University of the Cumberlands should modify its acceptance and expulsion procedures so that these decisions are not based on discriminatory reasoning. Because the university may now be considered a public college, it should adhere to standards governing public institutions, and do away with its discriminatory practices.


Universities should determine their status as public or private institutions before implementing discriminatory policies. If a university is private, it is afforded more protections under the First Amendment to implement discriminatory acceptance and expulsion procedures. However, if a university is public, it may not discriminate in any way through school policies or procedures.

If a university has continuously been deemed a private university, but subsequently accepts and receives state funding, then it should change any discriminatory guidelines to conform to public university requirements. Consequently, since the University of the Cumberlands arguably became a public institution upon receiving state funding in 2006, it should eliminate its discriminatory policies.

However, if the university intends to keep its discriminatory practices for admission and expulsion procedures, then it should continue to accept only private funds, such as endowments, tuition, and donations from alumni and friends, and not state funding.

Tacasha Bingham

1. John C. Shelley & Norma C. Cook, Academic Freedom and Tenure: University of the Cumberlands, Academe (bimonthly magazine of the American Association of University Professors) (2005).

2. University of the Cumberlands Student Handbook, 132 (2005-2006).

3. 408 U.S. 169 (1972).

4. Id. at 187

5. Malcom Galdwell, Getting In: The Social Logic of Ivy League Admissions, The New Yorker (October 10, 2005).

6. Gustav Niebuhr, Fundamentalist Beliefs Shape Life at University, The New York Times (2000).

7. 530 U.S. 640,647 (2000).

8. Id.

9. Id. at 648-651.

10. Id. at 660.

11. Id. at 654.

12. U.S. Const, amend. I.

13. Bob Jones U. v. U.S., 461 U.S 574, 603 (1983).

14. 536 A.2d 1, 31 (D.C. Cir. 1987).

15. Id.

16. Id. at 35.

17. Mark Pitsch, Pharmacy School Funding Questioned, The Louisville Courier-Journal (April 12, 2006).

18. The dispute will not have the opportunity to develop in court because the student relinquished his right to sue.

19. Gay Student Services v. Tex. A & M U., 737 R2d 1317 (5th Cir. 1984).

20. Id.

21. Gay Rights Coalition, 536 A.2d at 20.

22. 737 F.2d at 1372.

Copyright Jefferson Law Book Company Apr 2007

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