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Of Counsel
11/23/2015 12:00 AM

While some students may flock to Abercrombie & Fitch for the latest fashion trends, college and university administrators concerned with legal compliance can use a recent case involving the retailer to raise awareness about religious discrimination and religious freedom.

While some students may flock to Abercrombie & Fitch for the latest fashion trends, college and university administrators concerned with legal compliance can use a recent case involving the retailer to raise awareness about religious discrimination and religious freedom.

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., No. 14-86, the U.S. Supreme Court ruled that employees or applicants can prove intentional religious discrimination as long as they have evidence that the employer assumed the employee or applicant might need a religious accommodation.

In that particular case, a practicing Muslim applied for a job in an Abercrombie clothing store and, consistent with her faith, wore a head scarf to her interview. The interviewer gave the applicant a high rating, but the district manager instructed the store to not hire the applicant because the head scarf would violate the company dress code, which banned caps.

The Equal Employment Opportunity Commission sued Abercrombie on behalf of the applicant. The court ruled in favor of the applicant. Even though the applicant hadn’t requested an accommodation, Abercrombie’s assumption that she needed an accommodation could serve as evidence of religious discrimination.

Understand broader scope of religious laws, rights

But the Abercrombie case highlights only one narrow segment of religious discrimination laws and rights concerning religious freedom: Was the employer potentially violating Title VII of the Civil Rights Act of 1964 by choosing not to hire the applicant? But religious discrimination and religious freedom have many additional components. Employees have rights to accommodations for religious practices and beliefs — and in some situations, students do, too. Expression based on religious beliefs is often also protected by the First Amendment, and private institutions have religious rights as institutions.

In most workplaces, politics and religion are almost taboo. In contrast, most institutions of higher education welcome robust discussion of religious and political views as part of the learning environment and commitment to academic freedom. Institutional comfort with these topics can lead to a false sense of security that because the campus culture is open and welcoming of religious viewpoints, religious discrimination is unlikely to occur. When religious topics are openly discussed, however, the likelihood of a person’s perception that she is subjected to discrimination may be higher than in places in which people tend to avoid religious discussion.

Consider the following scenarios:

  • A campus organization invites a speaker with strong religious or antireligious beliefs, prompting media coverage. The coverage prompts workplace discussions around campus. From faculty meetings to facility department staff meetings to student residence halls, the speaker’s viewpoint and whether the institution should have brought the speaker to campus are hotly debated. While most discussion participants recognize or appreciate the discussion as part of the diversity on campus, a campus community member may feel offended or belittled based on his religious beliefs.
  • An institution embraces and celebrates a range of holidays. A staff member expresses that she feels marginalized because her “traditional” holiday isn’t given the attention it once had. The staff member is then criticized in a performance review for not embracing institutional diversity efforts.
  • A student is required to take a class that includes group work. The student indicates he has a religious objection to working with female students and requests to work only with male students (or vice versa).
  • An institution has a requirement that first-year students live on campus in residence halls. A student requests an exemption for religious reasons.
  • A student who is outspoken about her religious beliefs is accused of religious harassment by other students and disciplined after an investigation determines that the student created a hostile environment.
  • A student group seeks to exclude from its membership students who refuse to affirm a commitment to particular religious beliefs.

Each of these situations has its own potential legal challenges and demonstrates the tension between an institution’s commitment to exposing the campus community to a broad scope of ideas while at the same time ensuring individuals’ rights to exercise their own religious beliefs.

Reduce legal risk

To limit your institution’s legal risk, first assess the landscape of rights and freedoms applicable to it. A public institution has very different obligations from a private institution, and private religious-affiliated institutions may be able to claim exemptions from certain laws that implicate religious beliefs.

Religion is often notably absent from discrimination- and harassment-related training for employees and students. Ensure that members of the campus community understand that if they believe they’re subjected to religious discrimination or harassment, the institution will address their concerns under its policies prohibiting such conduct.

Religious expression and freedom are important parts of the fabric that makes up most college campuses. The Abercrombie case serves as a valuable reminder to ensure that your campus stays attuned to how individual rights are woven into that fabric.

10/26/2015 12:00 AM

The University of California, Santa Cruz is facing a tough few years going forward. With state tuitions frozen for the next few years and yearly costs increasing 6 percent, searching for out-of-the-box strategies to increase enrollment-based state funding and tuition revenue has been a forefront project for the campus.

CHICAGO — The University of California, Santa Cruz is facing a tough few years going forward. With state tuitions frozen for the next few years and yearly costs increasing 6 percent, searching for out-of-the-box strategies to increase enrollment-based state funding and tuition revenue has been a forefront project for the campus. In a session at the annual convention for the Society of College and University Planning, Tyrus Miller, vice provost for UCSC; Peggy Delaney, vice chancellor of planning and budget for UCSC; and Alison Galloway, Ph.D., campus provost and executive vice chancellor for UCSC, laid out their plan for increasing master’s and doctoral student enrollment from 10 to 15 percent of campus enrollment by 2020.

UCSC, which is a highly respected research university, ranking first in the world for research influence by Times Higher Education in 2014, currently enrolls 15,730 undergraduate students and only 1,546 graduate students. This breaks out to a population of master’s students that are only 8 percent of UCSC’s total enrollment and a doctoral population of only 6.7 percent of the total enrollment, about half of the University of California–wide average. The original vision of the campus, when it was chartered in 1963, was to have 15 percent total graduate enrollment within ten years, and 40 percent within 30 years. “Our campus physical design reinforces this vision,” Miller said, explaining that the clusters of departments scattered throughout the campus create an insulated world for each department to focus on its area of expertise. This helps build a community where graduate students can be mentored by their chosen faculty advisor amidst the gorgeous redwood trees. 

Finding unique partnerships builds programs

One effort that UCSC has undertaken to appeal to undergraduates looking to get their master’s or doctoral degree has been to either bring together departments on campus or partner with other institutions to create new degree programs. For example, in 2014 UCSC implemented the first joint bachelor of arts and juris doctorate program in the country to run a total of six years. By partnering with the University of California, Hastings College of Law, students enroll in a six-year program, upon completion of which they will be conferred both a BA and a JD. This shaves a year off the traditional law school and undergraduate path, saving students both tuition costs and time, and ensuring that UCSC’s graduate enrollment programs see a bump. “Students must be driven on this path,” Miller said, adding that although there are challenges to an accelerated program, students have been excited to enroll. 

UCSC has also developed an extension program based in Silicon Valley. And Galloway explained that the campus is looking to leverage its proximity to Silicon Valley and potentially create future certifications and pipeline programs to feed into jobs and internships, making the campus more attractive to potential undergraduate and graduate prospective students. The Silicon Valley extension campus offers free networking events and webinars for career preparedness for enrolled students. The extension campus offers certifications and courses in accounting, biotechnology, education and computer programming, among others, as well as a bevy of online courses.

Other efforts include pairing departments, such as game design and engineering, to work together to develop potential master’s degrees. Miller explained that recruiting from within the student population is one of the major shifts UCSC wants to make. To do that, officials need to develop programs specific to undergraduate needs and desires. Tying together existing programs also helps to pool funding for graduate programs and resources, Miller explained. Miller said that officials creating new programs will consider offering joint undergraduate and graduate degrees, decreasing total student time to receive a master’s degree. Miller and Galloway have worked to create faculty cluster groups to brainstorm and implement new graduate degree programs and possibilities. This has the added benefit of keeping faculty invested in building these programs on top of their already stretched workload.

The campus has already seen success with the new joint programs. New admittances to master’s and doctoral programs have risen from 376 students to 576 students since 2012. Specifically, 160 of these have been master’s students, doubling the number of students admitted to master’s programs since 2012, and 120 students accepted for doctoral programs, an 11 percent increase since 2012. 

Focus on whole-campus benefits to foster graduate program growth

Although these results have been very healthy and UCSC’s leadership team looks forward to more growth in the future, getting faculty buy-in for programs hasn’t always been easy. “None of our faculty are here just for graduate students,” Galloway said, citing examples of other universities where faculty members might be drawn to the potential of working with master’s and doctoral students to increase and support their own research. Galloway explained that working with undergraduates provides a very different experience than working with graduate students. UCSC faculty in particular are dedicated to working with undergraduate students, Galloway said. Another obstacle is that some departments are more committed to applying for grants than others, Galloway said. That means some departments have trouble funding research teams that include master’s and Ph.D. students. 

“We were also facing external factors forcing us to evolve our campus culture,” Delaney said. “We’re seeing a higher number of undergraduate applications, which could potentially throw our ratios off even more. We’re also facing budget cuts,” Delaney said, citing that the campus is facing a 6 percent cost increase each year, with only a commensurate 3 percent increase in state funding. “We’re also facing a mandate to grow across the University of California system.”

Galloway, Miller and Delaney worked to overcome these obstacles by focusing on the larger picture of what a larger graduate student enrollment would mean for the campus. Enhancing UCSC’s graduate and doctoral program offerings would do much more for the campus than simply boost enrollment and state funding. Having a higher percentage of graduate and doctoral students on campus could potentially help reduce some workload for faculty by having graduate students take on positions as teaching assistants and research assistants, which would in turn help students afford graduate school. Galloway has also worked on an initiative to tie incentives for department chairs and deans to efforts to recruit graduate students and grow graduate programs. “Our master’s incentive program returns money to deans and department chairs who help us recruit and grow graduate enrollment,” Galloway said.

While UCSC is a highly renowned research university, it has built its reputation as such without the full support of master’s or doctoral students, who often help professors conduct research and write papers. Building a strong graduate and doctoral program and community has a twofold benefit for the campus: It helps to attract the best and brightest of adult learners and it also helps to retain talented and renowned faculty. The faculty get the chance to work with up-and-coming students, and the students will conduct research that helps UCSC maintain its position as a major research university.

Strategic Planning
9/25/2015 12:00 AM
Does your institution allocate resources in a way that encourages student achievement and that is fiscally sound? The first step to answering that question is to calculate the revenue each program generates.

CHICAGO — Does your institution allocate resources in a way that encourages student achievement and that is fiscally sound? The first step to answering that question is to calculate the revenue each program generates.

In a recent session hosted by the annual convention for the Society for College and University Planning, James Liszka, Ph.D., provost and vice president of academic affairs; and Robert Karp, Ph.D., director of institutional effectiveness, from the State University of New York in Plattsburgh discussed the challenges and financial benefits their university saw after they undertook a cost-effective-based program planning operation on campus, using student transcripts and data to calculate how much money each campus program generated. The campus was facing declining enrollment, a lack of resources to develop new programs that might bring in students due to budget cuts and inefficient usage of current resources, and a campus curriculum that was not always well-aligned with student needs and demands. Using the Delaware Study of Instructional Costs and Productivity, as well as a “catalog method” developed by Nate Johnson, associate director of institutional planning and research at the University of Florida, officials at SUNY Plattsburgh were able to determine how to best utilize financial resources to support their most valuable departments and programs on campus.

SUNY Plattsburgh is one of SUNY’s 64 campuses. Plattsburgh serves 5,900 students, houses 34 buildings on campus, and offers 60 programs for undergraduate and graduate study. Liszka said that before implementing their cost-effective program planning measurements, it was difficult to determine exactly who was teaching what to whom and at what cost for the university. “We didn’t have a very good measurement tool for determining internal and external data on faculty teaching loads and instructional costs,” Liszka explained. After undertaking their program project, Liszka and Karp were able to map out exactly how much each credit hour for each student, both graduate and undergraduate, was costing SUNY Plattsburgh.

Determine how to measure your campus

Liszka and Karp defined cost-effectiveness as “based on direct institutional cost, not the full cost of the academic programs” and further defined direct institutional costs as “those costs, such as faculty salaries, benefits and costs other than personnel costs, directly tied to a program or department’s operating budget.” Liszka and Karp used four measures to determine the cost-effectiveness of each campus program:

  • Cost per student credit hour. This serves as an index of efficiency for delivery of instruction, and serves as an equalizer between large and small programs.
  • Cost per student credit hour as benchmarked by the Delaware Study. This provides a baseline to determine whether SUNY Plattsburgh’s programs were in line with national peer averages.
  • Annual net tuition revenue. This determines the net tuition revenue generated through the department or program offerings only.
  • Net revenue based on the cost of degree delivery. This calculates the net revenue generated in offering the entire degree program, including general education, cognate requirements and electives.

However, Liszka and Karp also endeavored to determine program cost and future planning with an eye toward maintaining university strengths and mission — the programs that were found to be not as relatively cost-effective were not necessarily cut or reduced just because of their bottom line. “If you’re just basing [program planning] on cost-effectiveness, you’re going to run into trouble,” Karp said. “We also wanted to emphasize that this is not just cutting costs — this is working to make sure we are allocating resources to the right places.”

Create department profiles to establish baseline and review yearly

First, Liszka and Karp created academic department profiles for each department on campus. These profiles serve four main purposes:

  • They provide key data to measure resource needs, particularly faculty positions.
  • They provide data to measure academic program performance, including cost-effectiveness.
  • They provide transparency for performance evaluations and any resource decisions made.
  • They help to change the culture of the institution toward data-driven decision-making.

These academic profiles include information on how each department figures into the institution’s mission, applications to the department and enrollment in the department, the student demographics, majors offered within the department, degrees awarded each year, recommendations from program accreditation and review, tables indicating the faculty-to-student ratio, and tables on instructional cost and effectiveness. Liszka and Karp also culled student credit hour information from student transcripts for several years for each program, breaking out lower-division, upper-division and graduate credit hours completed within the department. The academic department profiles also noted what support each department lends to other departments on campus and to general education credits.

These profiles are updated yearly and circulated to each department chair for review and edits. Liszka and Karp recommended that these profiles be kept confidential within the university to discourage competition between department programs, although that’s a decision that can be made on a campus-by-campus basis. Using these data and comparing credit hours, students enrolled, and full-time faculty and adjunct instructors, Liszka and Karp were able to determine a cost per student credit hour for SUNY Plattsburgh, which they then compared to the Delaware Study numbers for reference to a national peer average.

Liszka and Karp noted that the information from the academic department profiles is used “primarily for purposes of resource allocation” and included a chart showing what each data type meant in terms of performance and in terms of resources needed. For example, the number of majors offered in each department demonstrates what the student demand is for that department. Growth in that area can trigger new faculty resource allocation if needed.

Calculate cost-effectiveness using student credit hours

Liszka and Karp wrote that calculating “cost per student credit hour is an index of efficiency in delivery of instruction and is an equalizer between small and large programs.” However, even this benchmark might favor larger departments over smaller departments because the calculation comes from the number of student credit hours produced. To neutralize this, Liszka and Karp suggested going one step further with the academic department profiles and calculating the net tuition revenue per student.

According to Liszka and Karp, the easiest way to calculate cost per student credit hour is to use the Delaware Study. A campus can participate in that for somewhere between $1,000 and $2,000. More information about participating in the Delaware Study can be found at

However, Liszka and Karp also provided guidelines for calculating student credit hours if participating in the Delaware Study is not a suitable solution for your campus. To calculate your campus student credit hours on your own, you will need to:

1. Calculate student credit hours produced by degree program or department for a year. Depending on your campus needs, this may involve breaking down hours by undergraduate and graduate or by upper- and lower-division classes.

2. Add together all the direct instructional costs for the department for a year, as defined by the Delaware Study in this link:

3. Divide the direct instructional costs by the student credit hours. This provides the cost per credit hour.

4. To calculate the annual net tuition revenue of a program, determine total tuition actuals per category (undergraduate, graduate, lower and upper divisions). This is the gross revenue.
Subtract the direct costs of instruction (s
ee step 2) to determine the net annual tuition revenue.

5. To determine the net revenue per credit hour, divide the gross revenue (see step 4) by the total number of credit hours (see step 1). The figure that results is the gross revenue per credit hour. Subtract the cost per credit hour (see step 3) to determine the net revenue per credit hour.

6. To determine the net tuition revenue generated by a four-year degree for each program, Liszka and Karp using the Excel steps below. The calculations assume that the average student in each program enrolls with no transfer hours, completes his general education requirements by his junior year, and completes his degree in four years,

  • Create a table that culminates in formula cell E, total degree cost, the summation of the following cells:
    • Cell A: general education costs.
    • Cell B: department requirement costs.
    • Cell C: cognate requirement costs.
    • Cell D: elective costs.
  • Next, create formula cell G, which is the net four-year revenue per student, by subtracting cell E from cell F, the four-year tuition revenue.
  • Formula cell I is the net revenue for a four-year degree program, which is found by multiplying cell G (net four-year revenue per student) by cell H, the average number of majors within a department.

With these tables in hand for each department, Liszka and Karp were able to determine the cost-effectiveness of each program, benchmarking against the Delaware Study, and determining how best to allocate resources across campus.

You can contact James Liszka and Robert Karp at and  

Lawsuits and Rulings
8/13/2013 12:00 AM

30+ years of law practice are no substitute for scholarship

Case name: Spaeth v. Georgetown University, No. 11-1376 (ESH) (D.D.C. 05/09/13).

Ruling: The U.S. District Court for the District of Columbia granted summary judgment to Georgetown University, dismissing the plaintiff’s age discrimination claims.

Case name: Spaeth v. Georgetown University, No. 11-1376 (ESH) (D.D.C. 05/09/13).

Ruling: The U.S. District Court for the District of Columbia granted summary judgment to Georgetown University, dismissing the plaintiff’s age discrimination claims.

What it means: When a plaintiff claims he was not interviewed for a college or university position because of his age, it’s not sufficient to show that the individuals interviewed and hired were younger than he was. He must also show that he had all the qualifications necessary to obtain a tenure-track position.

Summary: Nicholas Spaeth — born in 1950 — attended Oxford University on a Rhodes Scholarship. He graduated from Stanford Law School in 1977 after serving as a law review editor.

Following law school, he served as North Dakota state attorney general for seven years, as general counsel to several Fortune 500 companies, and as a lawyer in private practice. He also taught constitutional law as an adjunct professor at the University of Minnesota Law School from 1980 through 1983.

In 2009, he decided to pursue an academic career. Ultimately, he obtained a non-tenure-track position as a visiting professor of law at the University of Missouri at Columbia for the 2010-2011 school year.

In 2010, Spaeth submitted a resume to an online resume system in which 172 law schools participated because his visiting professor position was only a one-year appointment.

He also wrote to several law schools directly to indicate his interest in being considered for a position.

He did not write directly to Georgetown University because he didn’t think that he wanted to live in Washington, D.C.

Spaeth was invited to preliminary interviews by only two schools and received no job offers.

He then filed a suit against Georgetown, claiming that its failure to interview and hire him violated the Age Discrimination in Employment Act because it ultimately hired three less-qualified candidates who were approximately 25 years younger.

Georgetown filed a motion for summary judgment, arguing that Spaeth’s online résumé did not reveal any interest or experience in producing the kind of original legal research and scholarship that Georgetown and other top-tier law schools required.

Spaeth countered that Georgetown had no written requirement that scholarship weighed heavily — or outweighed — teaching and service.

However, District Judge Ellen Huvelle said that the lack of a written requirement was irrelevant. She said there was no need to put in writing what everyone knew: that scholarship was — for better or worse — one of the overriding concerns among elite law schools in making hiring decisions.

She recognized that Spaeth strongly felt that law students should be taught by practitioners instead of academics. However, she said that he could not dispute that scholarship was indeed a primary focus of law schools when hiring faculty members, and she refused to interfere with the university’s priorities.

Judge Huvelle found that Spaeth did not demonstrate the necessary qualifications for an entry-level tenure-track position at Georgetown because he had no record of scholarly work and had not shown a potential for producing such work in the future.

She granted summary judgment in favor of the university.


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