Higher Education Act
Protection of student speech and
20 U.S.C. 1011a
What every student should know
This Federal Law was written to ensure
students give-up their Civil Rights when they start attending college or university.
"that the HEA does not expressly confer a private right of action, as the HEA only provides for a suit brought by or against the Secretary of Education"
(a) Protection of rights
(1) It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association,
be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance under this chapter, whether or not such program,
or division is sponsored or officially sanctioned by the institution.
(2) It is the sense of Congress that-
(A) the diversity of institutions and educational missions is one of the key strengths of American higher education;
(B) individual institutions of higher education have different missions and each institution should design its academic program in accordance with its educational goals;
(C) an institution of higher education should facilitate the free and open exchange of ideas;
(D) students should not be intimidated, harassed, discouraged from speaking out, or discriminated against;
(E) students should be treated equally and fairly; and
(F) nothing in this paragraph shall be construed to modify, change, or infringe upon any constitutionally protected religious liberty, freedom, expression, or association.
Nothing in this section shall be construed-
(1) to discourage the imposition of an official sanction on a student that has willfully participated in the disruption or attempted disruption of a lecture, class, speech, presentation, or performance made or scheduled to be made under the auspices of the institution of higher education, provided that the imposition of such sanction is done objectively and fairly; or
(2) to prevent an institution of higher education from taking appropriate and effective action to prevent violations of State liquor laws, to discourage binge drinking and other alcohol abuse, to protect students from sexual harassment including assault and date rape, to prevent hazing, or to regulate unsanitary or unsafe conditions in any student residence.
For the purposes of this section:
(1) Official sanction
The term "official sanction"-
(A) means expulsion, suspension, probation, censure, condemnation, reprimand, or any other disciplinary, coercive, or adverse action taken by an institution of higher education or administrative unit of the institution; and
(B) includes an oral or written warning made by an official of an institution of higher education acting in the official capacity of the official.
(2) Protected association
The term "protected association" means the joining, assembling, and residing with others that is protected under the first and 14th amendments to the Constitution, or would be protected if the institution of higher education involved were subject to those amendments.
(3) Protected speech
The term "protected speech" means speech that is protected under the first and 14th amendments to the Constitution, or would be protected if the institution of higher education involved were subject to those amendments.
Higher Education Act Claim
Plaintiff claims that defendants' alleged actions in this case violated his speech and association rights under provisions of the Higher Education Act ("HEA"), specifically, 20 U.S.C. § 1011a. Compl. ¶¶ 61-62. As Regent succinctly argues, however, it appears clear as a matter of law that the Higher Education Act does not provide any express or implied private rights of action for violations of its provisions. See, e.g., McCulloch v. PNC Bank, Inc.,298 F.3d 1217, 1221 (11th Cir. 2002) (noting the plaintiffs
concession "that the HEA does not expressly confer a private right of action, as the HEA only provides for a suit brought by or against the Secretary of Education" and "not[ing] at the outset that nearly every court to consider the issue in the last twenty-five years has determined that there is no express or implied private right of action to enforce any of the HEA's provisions"); see also Coll. Loan Corp. v. SLM Corp.,396 F.3d 588, 598 (4th Cir.2005) (citing McCulloch and acknowledging that
"only the Secretary [of Education] is authorized to enforce the HEA"). Consequently, plaintiff's HEA claim also fails as a matter of law.
Key v Robertson (2009, ED Va) 626 F Supp 2d 566