Do students have a right to sufficient academic support at every higher edu­cation institution? Are students’ civil rights abridged when the services are not offered? This controversial issue probes the need for learning assistance, credit and noncredit, at all institutions because of issues of equity and equal access. Reframing learning assistance for this purpose expands the need for compre­hensive services. Because education is considered a reserved right of the states, federal civil rights laws do not currently apply, but the question of whether this equity issue is covered by the equal opportunity clause of the U.S. Con­stitution is open to debate and potential litigation. In addition, the original federal charters for land-grant institutions specified service to all students resid­ing in a state. Many such colleges and universities have instituted selective admission policies excluding automatic admission of any resident student, and it raises similar equity issues (Ancheta, 2007).

Learning assistance services such as developmental courses are essential for students experiencing extreme academic difficulty in one or more academic content areas. These students are often from low socioeconomic or other groups that have been historically underrepresented in postsecondary education. Walpole (2007) names them “economically and educationally challenged.” This controversy changes the issue from whether these students benefit from learn­ing assistance to a question of whether failure to provide access programs violates their civil rights because they need these services for success (Miksch, 2005, 2008). A legal term describing absence of services for one population while available to another is “disproportionate impact.” Does failing to provide essen­tial learning assistance services at the institution of choice for these students affect them more negatively than the larger student population that is better academically prepared because they come from privileged backgrounds?

When students attended U.S. colleges in the 1700s and 1800s, academic preparatory academies and remedial and developmental courses were offered at all institutions, even elite private colleges. These offerings were necessary as a result of nonexistent or poor-quality private or public education. When privi­leged students were able to access quality public or private education before col­lege, many institutions curtailed or eliminated developmental courses. The “new students” often represent first-generation college students, students of color, and those underprepared academically because they attended poorly funded and underperforming urban or rural public school districts (Kozol, 1991).

Based on the largest national study on learning assistance, one-third of stu­dents enrolled in developmental courses are students of color, mostly African Americans and Hispanic Americans (Boylan, Bonham, and Bliss, 1994). At two-year institutions, 29 percent of students enrolled in these courses were African American and Hispanic American. The proportion grew to 37 percent at four-year institutions. The removal of these courses at four-year colleges and universities significantly affects students of color, as they are more likely to enroll than white students (Boylan, Bonham, and Bliss, 1994). African American stu­dents are more than twice as likely to enroll in these classes at two-year insti­tutions, compared with their proportion of the student population. At four-year institutions, the rate soars to three times more likely to enroll in the courses (Boylan, Bonham, and Bliss, 1994).

If students from economically and educationally challenged backgrounds are admitted to an institution with selective admission policies, they are often denied the same services previously provided to an earlier generation of priv­ileged students at the same institution. Why is it acceptable to treat these two student populations differently? Both had the same need because of inade­quate secondary school education. Why was it necessary to provide develop­mental courses for the first group in the past but deny those same services to the second group from economically and educationally challenged back­grounds in this generation?

Failure of these students to complete higher education is a concern not only for them and their families. Society pays a heavy price economically and socially for their failure (Belfield and Levin, 2007; Bowen, Chingos, and McPherson, 2009). This failure is another reason that learning assistance is a public policy issue.

Miksch (2005) investigates unequal availability of college preparatory and Advanced Placement programs in U.S. high schools. The majority of well-funded suburban public schools offer these programs, while less than half of high schools in rural and urban areas do. These courses are essential for suc­cessfully passing AP examinations that colleges use for awarding free college credit and fulfill other first-year classes without expense or time. This advan­tage is denied to those not taking or passing AP examinations because of inac­cessibility to college preparatory classes. A trained attorney and education policy expert, Miksch concludes, “this access to AP is a critical civil right issues” (2005, p. 227). The same principle applies to learning assistance. Curtailment or elimination of learning assistance activities, especially developmental courses, is not a neutral decision by four-year institutions. Providing these ser­vices, including developmental courses, to an earlier generation of privileged white students and then eliminating them for first-generation students from low socioeconomic backgrounds effectively closes the admissions door to them or neglects their needs if they are admitted (Boylan, Saxon, White, and Erwin, 1994). In either case, postsecondary education becomes more stratified and segregated. Cross (1976) argued these courses are essential for affirmative action and educational opportunity.

When access to essential learning assistance services is diminished, new access and equity questions arise. Who belongs in college? Where should they begin their academic career? Should some applicants be permitted to attend college, regardless of its location or level?