Final 2017 Flashcards
(91 cards)
1
Q
Is free speech expanding or declining?
A
Expanding
2
Q
Can state institutions restrict free speech?
A
No
3
Q
What is the first amendment?
A
Congress shall make no law abridging from freedom of speech, also known as protected speech
4
Q
What are the courts 5 limits on free speech?
A
Clear and present danger, fighting words, obscenity, defamation, and time/place/manner
5
Q
what is defamation?
A
the action of damaging the good reputation of someone; slander or libel. Shit talk! :)
6
Q
Who can use “time, place, and manner” restrictions?
A
Government or a land owner
7
Q
Which form of speech is more broad, political or commercial?
A
Political speech
8
Q
Is defamation a tort?
A
Yes
9
Q
What is slander?
A
Spoken defamation
10
Q
What is libel?
A
Written defamation (Connick vs Myers case)
11
Q
Which form of speech gets more protection, commercial or political?
A
Political speech
12
Q
What type of college gets more protection and why?
A
Public- constitutional issue, public school cannot deprive student of 1st amendment free speech right under color of “state action”–
Privates may offer similar protection under state constitution, state law, college policy or practice
13
Q
Can freedom of speech also be expressive conduct?
A
Yes, i.e. wearing an armband, signs, flag burning, etc
14
Q
Where is the fine line of free speech on a college campus?
A
You cannot disrupt (time, place, manner), but free speech is sometimes necessary on a college campus to foster a learning environment
15
Q
Form analysis: what are the 4 classes of public property?
A
Open, “designated”, limited, and closed/non-public forum (i.e. classroom)
16
Q
What is strict scrutiny analysis?
A
Regulation of speech is necessary to achieve a compelling gov’t interest, regulation at issue is narrowly tailored/least restrictive to achieve that interest, and regulation of speech is content neutral
17
Q
What is the 3 part test for time, place, and manner restrictions?
A
- justified w/o reference to content
- narrowly tailored to serve significant gov’t interest
- leave ample room for expression of viewpoint in other ways
18
Q
Free speech restrictions imposed by colleges?
A
- -use by approved student groups only
- -reserve space in advance
- -no amplified voices
- -administrator has discretion to approve
- -“wholesome activities”
19
Q
What is the “chilling effect”?
A
issue of time place + manner regulations that are “overbroad”—sweep up constitutionally protected speech
20
Q
What does hate speech in college look like?
A
Speech that targets and/or slanders minorities or others on the basis of protected status (i.e. religion, race/color, gender, immigration status, sexual preference/identity)
21
Q
Why is hate speech an imprecise term?
A
Generally highly derogatory, uses stereotypes, intended more to humiliate or stigmatize than communicate information, targets a person or group
22
Q
Can housing and res life go into a room at any time?
A
No, prohibition on unreasonable searches and seizures
23
Q
Can the college, as a landlord, consent to police searches of rooms?
A
No, this right belongs to student aka consent
24
Q
When can police/security enter rooms?
A
- -ensure compliance with agreement (no fishtanks, lofts, appliances etc.)
- -search for prohibited items, e.g. weapons or drugs, alcohol
- -emergency situations
25
If the cop doesn't have your ___, they must have a ____ to enter
consent, warrant
26
Best thing about campus security?
They document everything!!
27
Mullins v Pine Manor College- Student sued college for negligence from assault. What was the court outcome?
Court concludes there was a duty to use reasonable care to protect resident students from foreseeable risk of harm at the hands of 3rd parties.. court rules that negligence of college created risk of attacks by 3rd parties and was thus the proximate cause of injuries
28
Define Contracts
An agreement creating and defining the obligations between two or more parties- a binding agreement that is enforceable in court
29
From purchaser to seller=___,
| From seller to purchaser=___?
money, goods
30
Is contract law in the US state or federal law?
State law, aka its different in every state
31
What is the Uniform Commercial Code (UCC)?
A comprehensive "canned" set of laws on contract, first drafted in 1952, to promote uniformity among state contract laws- adopted by every state!
32
What are the two types of contracts?
Executed-- contract formed and performed at the same time
| Executory-- contract forme dat one time, performed later
33
Elements of contract
- -legal capacity, of the parties and of the object
- -intent to be bound++
- -offer and acceptance
- -consideration
- -formalities
34
What is legal capacity?
Each party signing a contract must have legal capacity, i.e. be of legal age, 18+, not be declared mentally incompetent etc.
35
What is legality of object?
illegal contracts and contracts made in violation of public policy are not enforceable—gambling, prostitution, sale of contraband etc.—agreement to work for less than minimum wage is unenforceable as against public policy
36
Intent to be bound/ Performance equals intent
can be inferred from the completion of formalities, i.e. execution of contract required to be in writing—can also be inferred from actions of the parties, especially to verbal contract- aka this is a legally binding agreement, follow through!
37
Offer and acceptance
Offer of contract containing basic elements of terms, acceptance of those exact terms—enough so that objective “meeting of the minds” takes place ← acceptance has to be a mirror image of the offer to be an acceptance
38
What is "consideration" in terms of contracts?
Each party must give something up, must be mutual, must be sufficient
39
What is Estoppel
Promisor makes a promise, and promisee relies upon promise, and changes his position to his detriment—even though no benefit has flowed from promisee to promisor, courts will find that the detrimental reliance is consideration
40
Define detrimental reliance
Term commonly used to force another to perform their obligations under a contract, using the theory of promissory estoppel
41
Formalities are contracts that must be in writing. What is the value minimum?
$500
42
Contractual terms: Promisee can be protected by
(1) separate writing showing authority, e.g. a power of attorney or a corporate resolution (2) representation clause in contract; person signing has full authority to act on behalf of corp. (3) doctrine of “apparent authority”
43
Essential contract terms that need to be determined or determinable?
Time, price, and subject matter
44
Define representations and warranties
Enforceable statements about parties and/or subject matter prior to contract being entered into
45
Define "boilerplate" clause
Refers to standardized language in contracts. Although often grouped together, boilerplate provisions don't have much in common with one another except that they don't fit anywhere else in the agreement.
46
What is an act of god clause?
Things we cannot control- aka a hurricane
47
Another word for insurance
Indemnification
48
Define "ab initio"
A voided contract, contract is unenforceable from the beginning (illegal, impossible)
49
When can a contract be voidable?
If the contract is with a minor or other person who lacks legal capacity
50
Define duress
Threat of harm to cause one to enter into a contract (i.e. if someone holds me hostage until I bring $, me robbing a bank is duress)
51
Define undue influence
exploitation of power relationship, "special relationship" i.e. client is related, married, etc.
52
Remedies for breach of contract? (2)
Damages and specific performance
53
Difference between legal remedy and equitable remedy?
Legal remedies allow the non-breaching party to recover monetary damages, Equitable remedies are a distinct category of remedies that can be obtained in a breach of contract situation
54
Define liquidated damages
When a damage is not capable of precise calculation
55
Student Organization recognition is a 2 way street...
1. The group agrees to abide by the rules and 2. college agrees to recognize them and provide resources
56
Special issues greek organizations present?
- Historical ties to institutions
- gender discrimination
- ties to national orgs
- hazing
57
Free exercise clause
"we can do whatever we want!" i.e. create our own religion
58
Establishment clause
This says to the federal/state governments that you make me convert to catholicism
59
What is the Title VII of the Civil Rights Act of 1964?
—applies to entities that affect interstate commerce
| —prohibits discrimination in employment on the basis of race, color, religion, national origin, gender
60
What is a protected status?
prohibit discrimination on the basis of age, citizenship, veteran status
ADA prohibits discrimination on the basis of disability
61
ADA protects what class?
Those with disabilities
62
civil rights laws prohibits?
discrimination in employment on the basis of:
Race, color, religion, national origin, gender, age (40+), marital status, veteran status, sexual preference, citizenship, disability
Remember that civil rights laws protect EVERYONE, not just “minorities”
—all races, all religions, both genders, etc. are protected from discrimination
—term “reverse discrimination” is a misnomer; discrimination against whites is still discrimination
63
What does the law require accommodations for?
Disabilities and religion
64
What are the 5 types of employment discrimination that the law recognizes?
1. Disparate treatment (DT)
- either “direct evidence” or “inference”, two people in similar roles being treated differently based on protected statuses
2. Disparate impact (DI)
- the idea that the employer has a rule/policy that appears neutral but discriminates against some (i.e. drivers license required but no driving involved)
3. Harassment
- two types: quid pro quo (something for something) and hostile work environment
4. Failure to accommodate
- religion or disability
5. Retaliation
- three elements are protected activity, adverse employment action, and causal nexus
65
A causal nexus?
close in time! If someone makes a claim, and then gets fired a week later, the stronger the inference is
66
Is claimant a protected status?
yes!
67
Define affirmative action
Policies that take race, gender or ethnicity into account in an attempt to promote equality of opportunity and/or increase diversity
68
Goal of affirmative action?
Remedy past discrimination, either specific (at that institution) or general (in society at large); promote diversity at all levels of society
69
Why do some think AA is okay?
Argue its necessary, and legal IF limited in time and narrow in scope. Also because we're using it to remedy prior discrimination
70
Why is AA "good business"?
Boosts minority enrollment at a time of rapidly changing demographics
71
Equal protection analysis?
Classifications based on race are “suspect classifications”—subject to “strict scrutiny”—legal only if: 1. they serve a compelling government interest and 2. they are narrowly tailored to achieve the compelling government interest
72
Difference between majority and plurality?
Plurality is the largest percentage of people, but it is not the majority
73
Regents v. Bakke (UC Davis): 1978, What happened?
CA realized it was getting diverse, and wanted that to show that in admittance! They set up a 2 tier system for admissions 1 track from disadvantaged/minorities and 1 track for general applicants- 16 spaces were reserved from disadvantaged track!
Bakke was not admitted to UCD for 2 years running despite having the credentials- he sued
74
What is the problem with the 2 track admissions system?
Policy violated equal protection by using a racial quota- increasing diversity was a compelling govt interest, but program was not narrowly tailored
75
What did Harvard do that was acceptable for AA?
They used a different model: Did not use a strict quota but used minority status as a "plus factor" in review of an applicant
76
Hopwood v. University of Texas, 1996- What happened?
UT Law had a 2 track admissions policy, said it was to remedy past discrimination (segregation occurred until 1964). Hopwood was not admitted into UT law, was more qualified than the minorities and had many personal hardships, and sued, UT won.
Hoped appealed to fifth circuit court of appeals, appeals court reversed, ruled that UT policy violated equal protection
Court ruled that diversity was NOT a compelling gov’t interest—race cannot be used as a factor—this represented a disagreement with ruling in Bakke. LAWYERS WERE V CONFUSED
77
What was the issue for Colleges in the 5th circuit?
How can they increase diversity without taking race into account- had to use race neutral criteria that have the effect of capturing more diverse populations "disparate impact" in reverse
78
What is strict scrutiny?
Serving a compelling govt interest and narrowly tailored!!!
79
Gratz (COLA) v Bollinger, US Supreme Court, U Michigan, 2003- What happened?
Unsuccessful white applicant. U Michigan used a point system to rank applicants for COLA- minority students got a 20 point boost- Court said the boost was too much (aka not narrowly tailored)
80
Grutter (LAW) v Bollinger, US Supreme Court, U Michigan, 2003- What happened?
Unsuccessful white applicants. Law school argued that a "critical mass" of minority students was essential to success in school- used race as a "plus factor" but there was no quota/boost!! Sixth Circuit reversed and said system was in compliance with Bakke
81
Why did the US Supreme Court agree with UMichh for Grutter v Bollinger?
Because the “critical mass” concept was legal under Bakke—cited educational benefits that accrue from having a diverse student body
Court also ruled that the “critical mass” concept was narrowly tailored—law school had stated explicitly that it looked forward to the day when it could discontinue the policy; court ruled that this “limited in time” concept showed that the policy was narrowly tailored
82
Define Critical Mass
Defined by the university as the point at which students in underrepresented minority groups no longer feel isolated or like spokespeople for their races. This also allows underrepresented minority students for the educational benefits of diversity to occur on campus!
83
3 MAJOR AA CASES TO KNOW!
1. Regents v Bakke (UCD), 1978
2. Hopwood v UT, 1996
3. Grutter v Bollinger & Gratz v Bollinger (UMich), 2003
84
What is a housing/license agreement?
1. outlines financial obligation, outlines dates, and terms and conditions of occupancy
2. college’s obligation to provide safe housing, heat, water etc.
3. student’s obligation to abide by rules, pay fees, abide by deadlines, visitation rules
4. outlines college’s rights to move student, expel student from housing, discipline student as consequence for breach of rules
85
What type of college is subject to the 4th amendment?
Public!
86
Goals of on campus housing
1. Social goals for students away from home
2. Access to extracurricular activities
3. Financial goals
87
Elements of a contract?
- legal capacity of the parties and of the object (aka 18+ and not insane)
- intent to be bound
- offer and acceptance
- consideration
- formalities
88
What is indemnification?
Agreement to be responsible for third parties (aka insurance company)
89
What makes a contract unenforceable?
1. Fraud
2. Mistake of fact
3. Duress
4. Undue influence
90
What is specific performance?
order requiring performance by breaching party
91
What else does MA law prohibit discrimination on the basis of?
Marital status, sexual preference
