The Academic Administrator and the Law E-Book

J. Douglas Toma

• Herausgeber: John Wiley & Sons
• Kategorie: Bildung
• Serie: J-B ASHE-ERIC Report Series (AEHE)
• Sprache: Englisch

Seitenzahl: 279

Veröffentlichungsjahr: 2011

Beschreibung

Synthesizes the research literature on legal issues that arise whenschool deans and department chairs perform their many duties. Paysparticular attention to the judicial process, plus areas ofemployment, student affairs, and external regulation.

Leseprobe

Contents

Foreword

Acknowledgments

Introduction

Chapter 1: The Law, the Courts, and Counsel

Types of Legal Issues

Internal and External Sources of the Law

Deference to Academic and Behavioral Decisions

The Distinction between Public and Private Institutions

The Attorney-Client Relationship

Pretrial and Trial Procedures

Individual or Institutional Liability: Authority and Delegation

Chapter 2: The Employment Relationship with Faculty and Staff

Foundations of the Relationship between Employer and Employee

Hiring and Promotion Decisions: Equal Protection and Due Process

Practical Concerns in Hiring and Promotion

Conduct and Misconduct on the Job: Navigating The Employment Relationship

Dismissal and Retirement of Faculty and Staff

Chapter 3: Students in the Academic Setting

Contract, Consumerism, and Citizenship

Misconduct and Discipline

Admissions and Access

Students’ Records

Expression, Organizations, and Publications

Institutional Liability

Chapter 4: Regulation and Oversight in the School and the Department

Copyrights, Trademarks, and Patent Law

Openness and Disclosure

Family and Medical Leave

Research and Teaching

Taxation and Fundraising

Accreditation

References

INDEX

Cite as

Toma, J. Douglas, and Richard L. Palm. 1999. The Academic Administrator and the Law: What Every Dean and Department Chair Needs to Know. ASHE-ERIC Higher Education Report Volume 26, No. 5. Washington, D.C.: The George Washington University, Graduate School of Education and Human Development.

Library of Congress Catalog Card Number 98-88006 ISSN 0884-0040 ISBN 1-878380-85-0

Managing Editor: Lynne J. Scott Manuscript Editor: Barbara M. Fishel Cover Design by Michael David Brown, Inc., The Red Door Gallery, Rockport, ME

The ERIC Clearinghouse on Higher Education invites individuals to submit proposals for writing monographs for the ASHE-ERIC Higher Education Report series. Proposals must include:

1. A detailed manuscript proposal of not more than five pages.

2. A chapter-by-chapter outline.

3. A 75-word summary to be used by several review committees for the initial screening and rating of each proposal.

4. A vita and a writing sample.

ERIC Clearinghouse on Higher Education

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Washington, DC 20036-1183

The mission of the ERIC system is to improve American education by increasing and facilitating the use of educational research and information on practice in the activities of learning, teaching, educational decision making, and research, wherever and whenever these activities take place.

This publication was prepared partially with funding from the Office of Educational Research and Improvement, U.S. Department of Education, under contract no. ED RR-93-002008. The opinions expressed in this report do not necessarily reflect the positions or policies of OERI or the Department.

EXECUTIVE SUMMARY

The deans and chairs who direct academic programs at universities, colleges, and community colleges frequently must address issues that raise legal questions. It is difficult to name a program or a service in higher education that does not intersect with the law in some way. The academic administrator must develop the skills needed to recognize the legal issues that invariably shape the policies and decisions made in a school or department. And deans and chairs must understand the resources available to assist them in resolving these issues, particularly when to call for legal advice.

What Legal Issues Might Arise for Deans and Chairs?

A variety of legal issues are likely to arise in university and college schools and departments. The most common ones involve contract and tort matters for staff and students, constitutional or statutory due process and equal protection, free expression, and external regulation in areas such as immigration and copyrights. The sources of the law that govern these issues are also numerous, ranging from the U.S. Constitution and the constitutions of the states, to state and federal legislation and administrative rule making, to judicial decisions made at all levels, to institutional rules and regulations, to institutional custom and practice.

Does the Legal Community Defer to Academic Decision Making?

Common across all types of legal issues, sources of law, and institutions is a traditional legislative and judicial deference to academic decision making. Though this traditional deference has eroded over time, it remains pronounced across higher education. But despite the considerable autonomy the law has customarily afforded higher education, it treats public and private institutions differently, and it applies different rules to religious and secular universities and colleges. In particular, public institutions are subject to constitutional provisions.

What Are the Roles of Institutional Counsel and Academic Deans and Chairs?

Academic administrators must not only know what the law is, but also understand the roles of counsel and the procedural contexts within which lawyers work. Deans and chairs frequently work with attorneys, both those retained by the institution and those hired in a personal capacity. These lawyers perform a variety of functions, and they owe their loyalty to different institutional clients at different times. One factor is relatively constant, however: Information exchanged between counsel and client is privileged and cannot be divulged.

Also of interest to academic administrators are the actual process of litigation-from complaint and answer, to discovery and trial (or settlement), to decision and remedy-and the issues of authority and delegation that determine whether individuals or institutions will be held liable.

What Issues Do Academic Administrators Face Daily?

The essence of the relationship between employers and employees is the employment contract, whether within the context of one-on-one bargaining between two parties or as part of a broader collective bargaining agreement. Closely related to employment contracts are decisions about hiring and promotion, each of which raises issues of equal protection and due process, particularly given constitutional provisions and statutory protections under the antidiscrimination laws. Moreover, these same issues commonly arise in matters of reappointment, tenure, promotion, and the dismissal and retirement of tenured faculty and staff. Affirmative action frequently plays a role in the employment relationship.

Academic administrators must keep in mind several very practical concerns in hiring and promoting faculty and staff: avoiding inappropriate questions during the interview, respecting individual privacy rights, and following immigration laws. Deans and chairs must also understand and respect faculty members’ right of academic freedom while still evaluating faculty performance, taking action when it is insufficient, and investigating and perhaps punishing misconduct by employees, such as sexual harassment.

Courts increasingly decide cases involving students using implied contract theories, having moved from the traditional doctrine of in loco parentis. Institutions are no longer necessarily assumed to have a parental-type relationship with students. Students are viewed as consumers with reasonable expectations of institutions for programs and services. In addition, although the traditional deference to academic decision making persists, courts are ever more willing to intervene in campus disciplinary actions involving both academic concerns and disciplinary matters. Typically, the key question in disciplinary matters is due process: How much notice and how much process is a student entitled to in a given situation?

Similarly, although courts continue to afford broad discretion to academic administrators in the area of admissions, institutions may be held in violation of the antidiscrimination laws and Equal Protection Clause of the U.S. Constitution when they act in a discriminatory manner, including in the emerging area of disability. Immigration law is also a common issue in admissions. Deans and chairs must also be aware of legislation that governs the confidentiality of students’ records, as well as constitutional provisions that protect the right of students to organize and express themselves. Finally, negligence-based institutional liability involving students is a critical concern for academic administrators.

Several state and federal regulations have a substantial effect on administrative decisions for schools and departments, particularly those addressing intellectual property, open meetings, family and medical leave, funded research, and taxation. Similarly, schools and departments are typically heavily involved in accreditation coordinated by private associations that serve a quasi-regulatory function.

The Academic Administrator and the Law includes an extensive list of references that provide more detailed analysis of particular topics. In no way is the report intended to be a substitute for sound legal advice, nor can it answer all legal questions a dean or chair might have. It does provide the background needed to better understand the complex relationships between the law and the administration of academic services and programs in postsecondary education.

FOREWORD

In many ways, higher education institutions have remained protected from the onslaught of lawsuits prevalent in so many sectors of our society. Nevertheless, college and university administrators need to become concerned about the steady erosion of the traditional protections against lawsuits that institutions have relied on.

Structural changes, such as the breakdown of traditional selection and acculturation processes, greater recognition of constitutional and contractual rights, the decline of career mobility for faculty, a greater array of service functions for higher education institutions, the increase in both external and internal regulation, and the technology revolution, have contributed to colleges’ and universities’ increased involvement in litigation. Accordingly, many campuses are refining their campus affirmative action, sexual harassment, disciplinary, technology, due process, discrimination, and athletics policies as new cases reshape our understanding of these areas of law.

Higher education professionals need to understand the impact of this growing litigious environment on their roles. They need to learn how to handle a growing number of legal dilemmas. Institutions need to consider whether their rules and policies adequately minimize their legal exposure in areas such as scope of employment, nongovernmental functions, foundations and related activities, cost of defense, out-of-state activities, and liability insurance. Deans and department chairs are the ones most often on the front line, with responsibility for legal issues surrounding employment relationships, students, and research, and for school and departmental issues such as accreditation and copyrights. Deans’ and department chairs’ administrative activities must be examined and considered daily in the context of legal issues that might be related. A handbook from human resources personnel or even from legal counsel will not adequately prepare an academic administrator for this job.

Thankfully, The Academic Administrator and the Law, by J. Douglas Toma and Richard L. Palm, assists by providing the context needed to address these important concerns. Moreover, it fills the information gap between a handbook from legal counsel and legal textbooks, providing a more generalized, nonlegalese discussion and offering a broad understanding of the complex legal situation facing higher education institutions.

Toma and Palm, both assistant professors of higher education at the University of Missouri-Kansas City, have synthesized the key literature relevant to legal issues that academic administrators encounter daily. They introduce basic legal principles and interpret the judicial process. One of the most important lessons embedded in The Academic Administrator and the Law is that deans and chairs must become aware of the legal implications of an issue. Moreover, once they discover an issue, they must know how to work effectively with legal counsel. The authors’ goal of having academic administrators become active participants in resolving legal issues and implementing preventive legal strategies is particularly important in an environment of growing litigiousness.

The Academic Administrator and the Law examines legal issues and how they vary by institutional type and institutional context. It offers specific information for church-affiliated institutions, public institutions, and private institutions. It also sheds light on timely issues such as affirmative action, the Americans with Disabilities Act, post-tenure review, and immigration, all of which are discussed elsewhere from a mostly philosophical perspective but also have important legal and practical implications.

The scrutiny of employment issues is critical at this time, when faculty members’ mobility has declined and litigation is increasing steadily. Toma and Palm’s report is a helpful supplement to a previous monograph in the ASHE-ERIC Report series, Tenure, Promotion, and Reappointment (vol. 24, no. 1), which details the history of tenure, the development of faculty employment contracts, constitutional rights in employment, discrimination in employment, and peer review.

Legal issues will only become more prevalent and more complex. Toma and Palm’s report will help administrators, especially academic leaders, to become more aware of the ways that a legal perspective can enhance their effectiveness and their accountability as agents of the institution. Astute academic leaders will value the synthesis and analysis of important legal issues contained in The Academic Administrator and the Law.

Adrianna J. Kezar

Series Editor,

Assistant Professor of Higher Education, and Director, ERIC Clearinghouse on Higher Education

ACKNOWLEDGMENTS

Our deep thanks go to several people who made our work possible and enjoyable.

Alan Douglas went well above and beyond the call of duty as our research assistant on the project.

Linda Edwards, as interim dean at the School of Education, University of Missouri-Kansas City, made available the funds needed to collect binders full of photocopied articles and a shelf full of books and monographs. She has been an invaluable supporter of both this project and our careers in general. Thanks are also due to Bernie Oliver and Ed Underwood, our school dean and department chair, for their advocacy and backing.

The staff in the business office at the School of Education, Brenda Fasken, Brenda Fox, and Paula Specil, did the nearly impossible and sorted though our various receipts and purchase orders.

Adrianna Kezar and the staff at the ERIC Clearinghouse on Higher Education were especially generous in their encouragement of the project and indispensable in readying it for printing. Several reviewers also improved the project greatly through their thoughtful comments on both the proposal and the manuscript.

Finally, the contributions of Carol Palm and Linda Bachman cannot be overestimated. Both offered support in countless important ways throughout the project.

INTRODUCTION

A multitude of legal issues commonly involve chairs of departments and divisions, and deans of colleges and schools at American universities, colleges, and community colleges. We have three main purposes for exploring these issues through what scholars have written about them.

First is to provide academic administrators with the general background necessary to recognize legal issues when they emerge on campus and to develop an appreciation of the resources–whether the books, chapters, articles, and papers synthesized in this report or the legal counsel employed or retained by all institutions–available to assist them in attempts to resolve the problems.

Second is to encourage academic administrators to be active participants in resolving legal issues that arise at a school or in a department. Being somewhat familiar with the essentials of the law–the terminology, procedures, and doctrines–affords the academic administrator the background necessary to be an active consumer of legal advice, whether disseminated through writings or imparted by counsel. Our goal is to afford practicing administrators not only the background to recognize legal issues when they emerge on campus, but also the competence and confidence to engage in sophisticated discussions about them with counsel and colleagues.

Third is to prompt academic administrators to consider and implement preventive law strategies. Potential legal ramifications should be a factor to consider in making decisions within academic units. In other words, the best way to address legal concerns is to anticipate, and thus possibly avoid, legal action. The successful dean or chair should understand the law sufficiently to craft policies that will avoid litigation to the extent possible. But academic administrators should also know enough to recognize that being called into court is quite often a part of their job and that the potential for legal action should not become something that causes paralysis in taking necessary action.

The focus of this report is on legal issues affecting schools or departments at higher education institutions. Although we discuss student issues, a broader literature is available on legal issues in student affairs administration outside the context of the academic unit. For instance, issues involving search and seizure in residence halls are typically outside the responsibility of chairs and deans. The topics that are covered in this report involving students–admissions, student programs, First Amendment issues–regularly, or at least sometimes, cross the desks of deans and chairs.

Similarly, we cover personnel issues involving faculty and other employees and address external regulation and oversight, but we do not highlight topics–or the technical aspects of topics–that are not typically within the scope of deans’ and chairs’ duties. Deans and chairs need to be aware of these topics–hiring, academic freedom, promotion and tenure, discipline and dismissal, open meetings and records acts, copyrights, cost recovery, selling and purchasing–but need not always be expert in the intricacies of these matters. Instead, academic administrators need to know which administrators on campus–in student affairs or human resources, for example–have appropriate expertise and when to turn to them with questions. They need to know when to consult the institution’s legal counsel, retained to develop a deep understanding of the legal issues that frequently occur in higher education. Still, deans and chairs may often have to interpret and approve procedures that can deeply affect practices in areas like hiring, promotion, and tenure that often involve legal issues. Thus, the intention here is to provide the background that deans and chairs require to recognize potential legal problems–before they arise and as they arise–and the ability needed to ask the appropriate experts on campus the right questions in an attempt to resolve them.

Academic administrators are fortunate that they have several excellent sources of information available on higher education law. The most comprehensive text on the topic is The Law of Higher Education (Kaplin and Lee 1995), which explores the entire range of issues in higher education law. Another important resource is The Law and Higher Education (Olivas 1997), which contains edited court decisions illustrating the issues occurring within higher education interspersed with commentary. Robert Hendrickson annually reviews developments in higher education law in Yearbook of Education Law (Russo 1996). Finally, several newsletters available by subscription provide monthly, bimonthly, or quarterly updates on current developments in higher education law, explaining current cases decided in the courts and their potential application and impact on campus.

A fine scholarly journal, Journal of College and University Law, carries articles on current issues in higher education law and publishes an annual review of changes. Articles in the Journal, typically found in law libraries and the offices of institutional counsel, generally walk a line between theory and practical advice. Similarly, law reviews–journals edited by law students that include theory-focused articles by both law students and legal scholars–and education journals collected in the ERIC database routinely publish articles related to legal issues at universities, colleges, and community colleges. Articles on law in education journals are generally more user-friendly and for nonlawyers than articles in law reviews.

Finally, several national organizations–the National Association of College and University Attorneys (NACUA), the College and University Personnel Association (CUPA), the National Association of Student Personnel Administrators (NASPA), the American College Personnel Association (ACPA), for example–disseminate updates on legal issues of note to academic administrators. These organizations also periodically produce monographs or edited collections covering specific issues in higher education law. Such publications generally take a practical approach to legal issues and are usually written for the nonlawyer. Each of these associations has an Internet site that includes a list of its publications.

CHAPTER 1

THE LAW, THE COURTS, AND COUNSEL

The academic administrator is likely to have a variety of types of legal issues cross his or her desk, which may be grounded in contract or tort, constitution or statute, or any number of other bases. The sources of the laws that govern these issues are also numerous, ranging from the U.S. Constitution and the state constitutions, to state and federal legislation and administrative rule making, to judicial decisions made at all levels, to institutional rules and regulations, to institutional custom and practice. Common across these types of legal issues and sources of law, and across different types of institutions, is a traditional legislative and judicial deference to academic decision making. Though this traditional deference has eroded over time, it remains pronounced across higher education. Although the law has customarily afforded higher education considerable autonomy, it treats public and private institutions differently, and it applies different rules to religious and secular universities and colleges; that is, public institutions are subject to constitutional provisions.