미국 고등교육법 영역에서의 최근 주요 사례 연구

This article covers recent major legal development in American Higher Education Law. It is including recent major legal cases on postsecondary institutions in american court. They are classified into four topics. 1) eligibility for private college unionization; 2) affirmative action; 3) academic freedom; 4) sovereign immunity and individual civil rights. 1. The National Labor Relations Board(NLRB) had consistently held that the definition of "employee" under Section 2(3) of the National Labor Relations Act(NLRA) did not include students who perform services at their educational institutions that are directly related to their educational program. But the NLRB ruled that interns and residents(Boston Medical, 330 N.L.R.B. No. 30) and graduate assistants(New York University, 332 N.L.R.B. No. 111) are employees within the meaning of Section 2(3) of the NLRA, and therefore eligible to unionize. While collective bargaining of full-time faculty at private colleges and universities have had difficulty, private sector part-time faculty are not so hampered. 2. 1) American government, universities, major corporations, etc., are all trying to reverse the effects of past discrimination. But past discrimination often cannot be reversed without treating people differently, based upon explicit consideration of the very criterion on which the past discrimination was based, e.g. race or sex. Such attempts to remedy past discrimination are called "affirmative action". 2) Since the Supreme Court's case Regents of the Univ. of california v. Bakke, 438 U.S. 265 (1978), affirmative action programs in students admissions have largely been based on diversity. This article covers two Michigan University cases, Grutter v. Bollinger, 123 S.Ct. 2325 (2003) and Fratz v. Bollinger, 123 S.Ct. 2411 (2003). 3. Academic freedom under the American First Amendment tend to arise in one of the following three ways. 1) claims of professors against faculty colleagues, students, administrators, or trustees, 2) claims of professors against the state, 3) claims of universities against the state. 4. 1) Sovereign immunity is a common law doctrine that protects the state as an entity, and its agencies, from litigation concerning common law or certain statutory claims. Immunity of a state and its agencies from suit in federal courts is also guaranteed by the Eleventh Amendment to the U. S. Constitution. 2) U. S. courts generally find Eleventh Amendment immunity unavailable to states where Congress is merely enforcing existing rights under the Fourteenth Amendment, such as the prohibition against gender and race discrimination. (Seminole Tribe v. State of Florida, 517 U. S. 44 (1966)) 3) There are pending cases about sovereign immunity of universities in federal anti-discrimination laws, e.g. Family and Medical Leave Act, Title Ⅶ of the Civil Rights Act, Equal Pay Act, and Section 504 of the Rehabilitation Act.