The Law of Higher Education, Volume 1, A Comprehensive Guide to Legal Implications of Administrative Decision Making E-Book
William A. Kaplin
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- Herausgeber: John Wiley & Sons
- Kategorie: Bildung
- Sprache: Englisch
Your must-have resource on the law of higher education Written by recognized experts in the field, the latest edition of The Law of Higher Education, Vol. 1 offers college administrators, legal counsel, and researchers with the most up-to-date, comprehensive coverage of the legal implications of administrative decision making. In the increasingly litigious environment of higher education, William A. Kaplin and Barbara A. Lee's clear, cogent, and contextualized legal guide proves more and more indispensable every year. Two new authors, Neal H. Hutchens and Jacob H Rooksby, have joined the Kaplin and Lee team to provide additional coverage of important developments in higher education law. From hate speech to student suicide, from intellectual property developments to issues involving FERPA, this comprehensive resource helps ensure you're ready for anything that may come your way. * Includes new material since publication of the previous edition * Covers Title IX developments and intellectual property * Explores new protections for gay and transgender students and employees * Delves into free speech rights of faculty and students in public universities * Expands the discussion of faculty academic freedom, student academic freedom, and institutional academic freedom * Part of a 2 volume set If this book isn't on your shelf, it needs to be.
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Seitenzahl: 3022
Veröffentlichungsjahr: 2019
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Table of Contents
Cover
Notice to Instructors
Notice of Website and Periodic Updates for the Sixth Edition
Preface
Overview of the Sixth Edition
Relationship Between the Sixth Edition and Earlier Editions
Audience
Organization
What Is New in This Edition
Citations and References
A Note on Nomenclature
Recommendations for Using the Book and Keeping Up to Date
Note
Acknowledgments
The Authors
PART ONE: PERSPECTIVES AND FOUNDATIONS
1 Overview of Higher Education Law
Section 1.1. How Far the Law Reaches and How Loudly It Speaks
Section 1.2. Evolution of Higher Education Law
Section 1.3. The Governance of Higher Education
Section 1.4. Sources of Higher Education Law
Section 1.5. The Public-Private Dichotomy
Section 1.6. Religion and the Public-Private Dichotomy
Section 1.7. The Relationship Between Law and Policy
Selected Annotated Bibliography
Notes
2 Legal Planning and Dispute Resolution
Section 2.1. Legal Liability
Section 2.2. Litigation in the Courts
Section 2.3. Alternative Dispute Resolution
Section 2.4. Legal Services
Section 2.5. Institutional Management of Liability Risk
Selected Annotated Bibliography
Notes
PART TWO: THE COLLEGE AND ITS GOVERNING BOARD, PERSONNEL, AND AGENTS
3 The College and Its Trustees and Officers
Section 3.1. The Question of Authority
Section 3.2. Sources and Scope of Authority and Liability
Section 3.3. Institutional Tort Liability
Section 3.4. Institutional Contract Liability
Section 3.5. Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)
Section 3.6. Captive and Affiliated Organizations
Selected Annotated Bibliography
Notes
4 The College and Its Employees
Section 4.1. Overview of Employment Relationships
Section 4.2. Pre-hire Considerations
Section 4.3. Employment Contracts
Section 4.4. Civil Service Rules
Section 4.5. Collective Bargaining
Section 4.6. Other Employee Protections
Section 4.7. Personal Liability of Employees
Section 4.8. Performance Management Issues
Selected Annotated Bibliography
Notes
5 Nondiscrimination and Affirmative Action in Employment
Section 5.1. The Interplay of Statutes, Regulations, and Constitutional Protections
Section 5.2. Sources of Law
Section 5.3. The Protected Classes
Section 5.4. Affirmative Action
Section 5.5. Application of Nondiscrimination Laws to Religious Institutions
Selected Annotated Bibliography
Notes
PART THREE: THE COLLEGE AND ITS FACULTY
6 Faculty Employment Issues
Section 6.1. Overview
Section 6.2. Faculty Contracts
Section 6.3. Faculty Collective Bargaining
Section 6.4. Application of Nondiscrimination Laws to Faculty Employment Decisions
Section 6.5. Affirmative Action in Faculty Employment Decisions
Section 6.6. Standards and Criteria for Faculty Personnel Decisions
Section 6.7. Procedures for Faculty Employment Decisions
Section 6.8. Closure, Merger, and Reduction in Force
Selected Annotated Bibliography
Notes
7 Faculty Academic Freedom and Freedom of Expression
Section 7.1. General Concepts and Principles
Section 7.2. Academic Freedom in Teaching
Section 7.3. Academic Freedom in Research and Publication
Section 7.4. Academic Freedom in Institutional Affairs
Section 7.5. Academic Freedom in Private Life
Section 7.6. Administrators' Authority Regarding Faculty Academic Freedom and Freedom of Expression
Section 7.7. Protection of Confidential Academic Information: The “Academic Freedom Privilege”
Section 7.8. Academic Freedom in Religious Colleges and Universities
Selected Annotated Bibliography
Notes
PART FOUR: THE COLLEGE AND ITS STUDENTS
8 The Student-Institution Relationship
Section 8.1. The Legal Status of Students
Section 8.2. Admissions
Section 8.3. Financial Aid
Section 8.4. Student Housing
Section 8.5. Campus Computer Networks
Section 8.6. Campus Security
Section 8.7. Other Support Services
Section 8.8. Student Records
Selected Annotated Bibliography
Notes
End User License Agreement
Guide
Cover
Table of Contents
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Note: Since the publication of the Fifth Edition, we have added two outstanding new coauthors to our team, Neal Hutchens and Jacob Rooksby. Their bios are in the “The Authors” section below. We are greatly pleased to introduce them to you.
WKBL
William A. Kaplin
Barbara A. Lee
Neal H. Hutchens
Jacob H. Rooksby
The Law of Higher Education
A Comprehensive Guide to Legal Implications of Administrative Decision Making
Sixth Edition
Volume I
Copyright © 2019 by John Wiley & Sons, Inc. All rights reserved.
Previous editions Copyright © 2013, 2006, 1995 by John Wiley & Sons, Inc.
Published by Jossey-BassA Wiley Brand535 Mission Street, 14th Floor, San Francisco, CA 94105-3253—www.josseybass.com
No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, 978-750-8400, fax 978-646-8600, or on the Web at www.copyright.com. Requests to the publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, 201-748-6011, fax 201-748-6008, or online at www.wiley.com/go/permissions.
Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. Readers should be aware that Internet Web sites offered as citations and/or sources for further information may have changed or disappeared between the time this was written and when it is read.
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ISBN 9781119271840 (vol. 1)ISBN 9781119271871 (vol. 2)
Library of Congress Cataloging-in-Publication Data
Names: Kaplin, William A., author. | Lee, Barbara A., author. | Hutchins, Neal H, author. | Rooksby, Jacob H., 1982- author.
Title: The law of higher education : a comprehensive guide to legal implications of administrative decision making / William A. Kaplin, Barbara A. Lee, Neal H. Hutchens, Jacob H. Rooksby.
Description: Sixth edition. | San Francisco, CA : Jossey-Bass & Pfeiffer Imprints, [2019] | Series: The Jossey-Bass higher and adult education series | Includes bibliographical references and index.
Identifiers: LCCN 2018054935 (print) | LCCN 2018056656 (ebook) | ISBN 9781119271864 (Adobe PDF) | ISBN 9781119271857 (ePub) | ISBN 9781119271840 (vol. 1) | ISBN 9781119271871 (vol. 2)
Subjects: LCSH: Universities and colleges—Law and legislation—United States. | Education, Higher—Law and legislation—United States. | Universities and colleges—United States—Administration.
Classification: LCC KF4225 (ebook) | LCC KF4225 .K36 2019 (print) | DDC 344.73/074—dc23
LC record available at https://lccn.loc.gov/2018054935
Library of Congress Cataloging-in-Publication Data has been applied for and is on file with the Library of Congress.
SIXTH EDITION
Notice to Instructors
A Student Version of The Law of Higher Education, sixth edition, will be published shortly after this sixth edition is published. In addition, a website supporting the sixth edition and the Student Version is available to instructors and students. This website is hosted by the National Association of College and University Attorneys (NACUA) and is accessible at https://www.nacua.org/lohe6theditionupdates. There will also be an Instructor's Manual available only to instructors who adopt the Student Version for their classroom teaching, which will be on the NACUA website.
The Law of Higher Education: Student Version will be approximately one-half the length of the sixth edition and will contain material from the sixth edition that has been carefully selected by the authors for its particular relevance for classroom instruction. The Student Version will also include a new Preface, a General Introduction to the study of higher education law, and four appendices directed specifically to students and instructors. This Student Version will be available from Jossey-Bass in the spring semester of 2020.
Through NACUA, the authors also provide website postings on recent legal developments and new research resources, as well as periodic updates to the Law of Higher Education books, as described in the Notice that immediately follows this one. These services should greatly assist instructors in keeping their courses up to date. Further information on these various resources and instructions for using them are on the NACUA website.
Notice of Website and Periodic Updates for the Sixth Edition
The authors, in cooperation with the publisher, have made arrangements for periodic updates for this sixth edition of The Law of Higher Education. Beginning with the publication of the fourth edition in 2006, the National Association of College and University Attorneys (NACUA) has hosted a website for The Law of Higher Education and its progeny, including the Student Version of The Law of Higher Education and A Legal Guide for Student Affairs Professionals. A primary purpose of this website is to provide quick access to the authors' brief updates and citations on major new developments and resources that affect the discussions in these books. The updates for the sixth edition may be accessed through the NACUA website at https://www.nacua.org/lohe6theditionupdates. Further directions for using the website will also be available at this address. This updating service for users of The Law of Higher Education, the Student Version, or the Student Affairs volume is intended to be a response to the law's dynamism—to the rapid and frequent change that occurs as courts, legislatures, government agencies, and private organizations develop new requirements, revise or eliminate old requirements, and devise new ways to regulate and influence institutions of higher education.
The Jossey-Bass Higher and Adult Education Series
Much as it takes a village to raise a child (a saying of obscure origin), it takes an “academical village” (Thomas Jefferson's phrase) to raise a book—at least a book such as this that arises from, and whose purpose is to serve, a national (and now international) academic community. This book is dedicated to all those members of our academical village who in numerous and varied ways have helped raise this book from its origins through this sixth edition, and to all those members who will face the great challenges of law and policy that will shape higher education's future.
Preface
Overview of the Sixth Edition
Operating the colleges and universities of today presents a multitude of challenges for their leaders and personnel. Often the issues they face involve institutional policy, but with continually increasing frequency these issues have legal implications as well. Examples abound. A student enrolled in an online course may commit plagiarism or violate the code of student conduct in some other way. In what ways may the college discipline the student, and what process should be followed? A staff member may become a “whistleblower” and allege that the college is violating the law. Suppose the college was preparing to dismiss the complaining staff member for poor performance just before he “blew the whistle”. May the college still dismiss the staff member? A student religious organization may approach the dean of students seeking recognition or an allocation from the fund for student activities. If membership is limited to students of a particular faith, or if the student organization does not admit gays or lesbians, how should the administration respond? A faculty member may challenge a negative promotion or tenure decision on the ground that her performance was negatively affected by a disability. Is the college required to modify the tenure criteria it applies to the faculty member, or might the faculty member have other rights to assert? A faculty member is disciplined by the school's dean for having made various comments to high-level administrators and the press about the importance of racially and ethnically diverse faculty and the school's failure to work toward this goal. The faculty member claims a violation of free speech and academic freedom. Is this a viable claim? A wealthy alumna may call the vice president for student affairs and offer to make a multimillion-dollar donation for scholarships on the condition that the scholarships be awarded only to African-American students from disadvantaged families. Can and should the vice president accept the donation and follow the potential donor's wishes?
We have designed this book as a resource for college and university attorneys, officers and administrators, trustees, faculty, and staff who may face issues such as these or innumerable others. The book provides foundational information and conceptual building blocks, in-depth analysis of key developments, and practical suggestions on a wide array of legal and policy issues faced by public and private institutions; the book also recommends and describes numerous additional resources to aid research, analysis, and legal planning. In particular, the book identifies trends and tracks their implications for academic institutions—often pointing out how particular legal developments may clash with, or support, important academic practices or values. In addition, the book explores relationships between law and policy, suggests preventive law measures for institutions to consider, and includes other suggestions and perspectives that serve to facilitate effective working relationships between counsel and administrators who grapple with law's impact on their campuses.
The discussions draw upon pertinent court opinions, constitutional provisions, statutes, and administrative regulations, as well as selected secondary sources such as journal articles, books, reports, and websites. In selecting topics and cases for discussion, we have primarily considered their significance for higher education policy making or legal risk management, their currency or timelessness, and their usefulness as illustrative examples of particular problems or as practical applications of particular legal principles.
Relationship Between the Sixth Edition and Earlier Editions
This sixth edition of The Law of Higher Education is the successor to the fifth edition, published in 2013, and the updates posted on the website of the National Association of College and University Attorneys periodically after the publication of the fifth edition. The sixth edition features a thoroughly revised, updated, and expanded text. This edition is current to approximately June 2018, but also occasionally references developments from later in that year.
In the years since publication of the fifth edition and then its updates, many new and newly complex legal concerns have arisen on U.S. campuses—from the use (and abuse) of the internet in student life, teaching and learning, and communications generally. Conflict about affirmative action in admissions continues, despite guidance from the U.S. Supreme Court. Arguments over “hate speech” and the boundaries of free speech and academic freedom have intensified on campus, and U.S. immigration policy has affected many current and prospective students. Indeed, it is difficult to identify any other entities—including large corporations and government agencies—that are subject to as great an array of legal requirements as are colleges and universities.
To serve the needs occasioned by this continual growth of the law, the sixth edition retains all material of continuing legal currency from the fifth edition and the updates, reorganized and reedited (and often reanalyzed) to accommodate the deletion and addition of materials and to maximize clarity and accessibility. To this base, we have added considerable new material that did not appear in earlier editions or updates. Specifically, we have extended the discussion of matters that appeared (in hindsight) to have been given insufficient attention in earlier editions or that have since acquired greater significance; integrated pertinent new developments and insights regarding topics in the earlier editions; and introduced numerous new topics and issues not covered in earlier editions. (See the listing of new sections below under the heading “What Is New in This Edition.”)
Although considerable material from earlier editions has lost its legal currency as a result of later developments, we have nevertheless retained some of this material for its continuing historical significance. What has been retained, however, is often presented in a more compressed format than in earlier editions. Thus, readers desiring additional historical context for particular issues may wish to consult earlier editions. Moreover, we have sometimes deleted or compressed material that still has legal currency, because later cases or developments provide more instructive illustrations. Thus, readers seeking additional examples of particular legal issues may also wish to consult previous editions.
Like the earlier editions, the sixth edition covers all of nonprofit postsecondary education—from the large state university to the small private liberal arts college, from the graduate and professional school to the community college and vocational and technical institution, and from the traditional campus-based program to the innovative off-campus or multistate program, and now to distance learning as well. The sixth edition also covers proprietary (for-profit) institutions in situations where they are treated differently from nonprofits (e.g., state licensure of postsecondary institutions and programs), and in other areas of particular interest to proprietary institutions (e.g., distance learning).
The sixth edition also reflects the same perspective on the intersection of law and education as described in the preface to the first edition:
The law has arrived on the campus. Sometimes it has been a beacon, at other times a blanket of ground fog. But even in its murkiness, the law has not come “on little cat feet,” like Carl Sandburg's “Fog”; nor has it sat silently on its haunches; nor will it soon move on. It has come noisily and sometimes has stumbled. And even in its imperfections, the law has spoken forcefully and meaningfully to the higher education community and will continue to do so.
Audience
The Law of Higher Education was originally written for administrative officers, trustees, and legal counsel who dealt with the many challenges and complexities that arise from the law's presence on campus, and for students and observers of higher education and law who desired to explore the intersection of these two disciplines. Beginning with the third edition, and continuing through this sixth edition, we have expanded the book's materials and scope to serve additional groups who regularly encounter legal conflicts and challenges in their professional lives: for example, directors of student judicial affairs offices; directors of equal opportunity offices; directors of offices for disabled students and for international students; and directors of resident life; deans and department chairs; risk managers; business managers and managers of grants and contracts; technology transfer, intellectual property, and sponsored research administrators; athletic directors; and directors of campus security. In addition, others outside the colleges and universities may find this sixth edition useful: for example, officers and staff at higher education associations, executives and project officers of foundations serving academia, education policy makers in state and federal governments, and attorneys representing clients who enter into transactions with or have disputes with postsecondary institutions.1
To be equally usable by administrators and legal counsel, the text avoids legal jargon and technicalities whenever possible and explains them when they are used. Footnotes throughout the book are designed primarily to provide additional technical analysis and research resources for legal counsel.
In seeking to serve its various audiences, this book organizes and conceptualizes the entire range of legal considerations pertinent to the operation of colleges and universities. We have also sought to clearly subdivide the many chapters and sections of the book, and to clearly label them, so that our readers can easily identify which sections are of primary concern to them.
Organization
We have organized this sixth edition into sixteen chapters. These chapters are in turn organized into six parts: (1) Perspectives and Foundations; (2) The College and Its Governing Board, Personnel, and Agents; (3) The College and Its Faculty; (4) The College and Its Students; (5) The College and Local, State, and Federal Governments; and (6) The College and External Private Entities. Each of the sixteen chapters is divided into numerous sections and subsections.
Chapter 1 provides a framework for understanding and integrating what is presented in subsequent chapters and a perspective for assimilating future legal developments. Chapter 2 addresses foundational concepts concerning legal liability, preventive law, and the processes of litigation and alternative dispute resolution. Chapters 3 through 11 discuss legal concepts and issues affecting the internal relationships among the various members of the campus community and address the law's impact on particular roles, functions, and responsibilities of trustees, administrators, faculty, and students. Chapters 12, 13, and 14 are concerned with the postsecondary institution's external relationships with government at the local, state, and federal levels. These chapters examine broad questions of governmental power and process that cut across all the internal relationships and administrative functions considered in Chapters 3 through 11. Chapters 12 through 14 also discuss particular legal issues arising from the institution's dealings with government and identify connections between these issues and those explored in the earlier chapters. Chapters 15 and 16 also deal with the institution's external relationships, but the relationships explored are those with the private sector rather than with government. Chapter 15 covers the various national and regional education associations with which the institution interacts. Chapter 16 covers the myriad relationships—many on the cutting edge—that institutions are increasingly forging with commercial and industrial enterprises.
What Is New in This Edition
The most obvious new development in this book is the addition of two new coauthors. Neal H. Hutchens and Jacob H. Rooksby have signed on as coauthors and are full partners in the updating and revising of The Law of Higher Education, sixth edition.
Neal is a Professor of Higher Education and Chair of the Department of Higher Education at the University of Mississippi. Neal received his Ph.D. in education policy with a specialization in higher education from the University of Maryland, and his J.D. from the University of Alabama (see his bio on p. xliii for additional information about Neal). Jacob H. Rooksby is Professor of Law and Dean of the Gonzaga University School of Law. Jacob received his M.Ed., Ph.D. and J.D. at the University of Virginia. More about Jacob can be found on p. xliii.
On the stage set by recent developments, many new topics of concern have emerged, and older topics that once were bit players have assumed major roles. To cover these topics, the sixth edition adds discussion of Title IX litigation related to sexual assault, legal rights of transgender faculty, staff and students, and new developments in the “special relationship” doctrine and student suicide. The religious rights of religious institutions are reconsidered in light of the U.S. Supreme Court's decision in Trinity Lutheran Church.
Other sections from the fifth edition have been expanded, reconceptualized and reorganized as well as updated: all material involving Title IX of the Education Amendments, previously discussed in sections 8.1.5 and 14.5.3, is now consolidated in section 14.5.3. Cases involving faculty academic freedom and free speech rights have been added to Chapter 7, as well as legal implications of the recent restrictions on travel to the United States and from the U.S. to Cuba proposed by the Trump administration. The discussion about dismissals of students for alleged violations of professional ethics or behavior standards in Section 9.6.3 has been expanded, as well as cases involving online speech. Section 11.4.3's analysis of the speech rights of student athletes, including the monitoring of their speech on social media, has also been expanded and updated. New cases and analysis of legal regulation of campus computer networks appears in a revised and expanded Section 14.2.12. New state laws related to student protests are discussed in Section 10.4, and developments in state laws regarding campus carry gun laws are addressed in Section 13.5.6. We have also updated the book's coverage in complex areas that have changed substantially since the fifth edition, like intellectual property, taxation, and Medicare.
Citations and References
Each chapter ends with a Selected Annotated Bibliography. We suggest that readers use the listed books, articles, reports, websites, and other sources to extend the discussion of particular issues presented in the chapter, to explore related issues not treated in the chapter, to obtain additional practical guidance in dealing with the chapter's issues, to learn the history or to keep abreast of later developments regarding a particular issue, or to identify resources for research. Other such sources pertaining to narrower issues are cited in the text, and footnotes contain additional legal resources primarily for lawyers. Court decisions, constitutional provisions, statutes, and administrative regulations are also cited throughout the text. In addition, the footnotes contain copious citations to American Law Reports (A.L.R.) annotations that collect additional court decisions on particular subjects and periodically update each collection.
The citation form for the various legal sources cited in the sixth edition generally follows The Bluebook: A Uniform System of Citation (20th ed., Columbia Law Review Association, Harvard Law Review Association, University of Pennsylvania Law Review, and Yale Law Journal, 2015). The legal sources that these citations refer to are described in Section 1.4 of this book.
A Note on Nomenclature
The sixth edition, like previous editions, uses the terms “higher education” and “postsecondary education” to refer to education that follows a high school (or K–12) education. Often these terms are used interchangeably; at other times “postsecondary education” is used as the broader of the two terms, encompassing formal post–high school education programs whether or not they build on academic subjects studied in high school or are considered to be “advanced” studies of academic subjects. Similarly, this book uses the terms “higher education institution,” “postsecondary institution,” “college,” and “university” to refer to the institutions and programs that provide post–high school (or post-K–12) education. These terms are also often used interchangeably, but occasionally “postsecondary institution” is used in the broader sense suggested above, and occasionally “college” is used to connote an academic unit within a university or an independent institution that emphasizes two-year or four-year undergraduate programs. The context generally makes clear when we intend a more specific meaning and are not using these terms interchangeably.
The term “public institution” generally means an educational institution operated under the auspices of a state, county, or occasionally the federal government or a city government. The term “private institution” means a nongovernmental, nonprofit or proprietary, educational institution. The term “religious institution” encompasses a private educational institution that is operated by a church or other sectarian organization (a “sectarian institution”), that is otherwise formally affiliated with a church or sectarian organization (a “religiously affiliated institution”), or that otherwise proclaims a religious mission and is guided by religious values.
Recommendations for Using the Book and Keeping Up to Date
There are some precautions to keep in mind when using this book, as noted in the prefaces for the first five editions. We reemphasize them here for the sixth edition. The legal analyses throughout this book, and the numerous practical suggestions, are not adapted to the law of any particular state or to the circumstances prevailing at any particular postsecondary institution. The book is not a substitute for the advice of legal counsel, nor a substitute for further research into the particular legal authorities and factual circumstances that pertain to each legal problem that an institution, government agency, educational association, or person may face. Nor is the book necessarily the latest word on the law. There is a saying among lawyers that “the law must be stable and yet it cannot stand still” (Roscoe Pound, Interpretations of Legal History (1923), 1), and the law moves especially fast in its applications to postsecondary education. Thus, we urge administrators and counsel to keep abreast of ongoing developments concerning the legal sources and issues in this book. Various aids (described below) are available for this purpose.
Although new resources for staying up to date appear periodically, the total volume of pertinent law continues to grow. Thus, keeping abreast of developments is as much a challenge now as it was when the previous editions were published. To assist readers in this task, we maintain a website, hosted by the National Association of College and University Attorneys (NACUA), Washington, D.C. (available at http://www.nacua.org), on which we announce or post pertinent new developments and key them to the sixth edition. In addition, there is a very helpful website, the Campus Legal Information Clearinghouse (CLIC) (available at http://counsel.cua.edu), operated by the General Counsel's Office at the Catholic University of America in conjunction with the American Council on Education, that includes information on recent developments, especially federal statutory and federal agency developments, and practical compliance suggestions. There is also a legal reporter that reprints new court opinions on higher education law and provides commentary on recent developments: West's Education Law Reporter, published biweekly by Thomson West Publishing Company, St. Paul, Minnesota. (Entries for this reporter and for CLIC are in the Selected Annotated Bibliography for Chapter 1, Section 1.1.)
Also helpful are various periodicals that provide information on current legal developments. The Pavela Report, which publishes 40 issues per year, provides in-depth analysis and commentary on major contemporary issues. (This resource is also listed in the Selected Annotated Bibliography for Chapter 1, Section 1.1.) Lex Collegii, a newsletter published by College Legal Information, Nashville, Tennessee (available at http://www.collegelegal.com/lexcolhp.htm), analyzes selected legal issues and provides preventive law suggestions, especially for private institutions. And Business Officer, a monthly magazine published for its members by the National Association of College and University Business Officers (available at http://www.nacubo.org), emphasizes developments in Congress and the federal administrative agencies.
For news reporting of current events in higher education generally, but particularly for substantial coverage of legal developments, readers may wish to consult The Chronicle of Higher Education, published weekly in hard copy and daily online (available at http://www.chronicle.com) (see entry in Section 1.1 of the Selected Annotated Bibliography for Chapter 1); Inside Higher Ed, published every weekday (available at http://www.insidehighered.com); or Education Daily, published every weekday (available at http://www.educationdaily.net/ED/splash.jsp).
For keeping abreast of conference papers, journal articles, and government and association reports, Higher Education Abstracts is helpful; it is compiled quarterly by the Claremont Graduate School, Claremont, California and available through the Wiley Online Library (available at http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)2150-1092). The Educational Resources Information Center (ERIC) database (available at http://www.eric.ed.gov), sponsored by the U.S. Department of Education, performs a similar service encompassing books, monographs, research reports, conference papers and proceedings, bibliographies, legislative materials, dissertations, and journal articles on higher education. In addition, the IHELG monograph series published each year by the Institute for Higher Education Law and Governance, University of Houston Law Center, provides papers on a wide variety of research projects and timely topics.
For extended legal commentary on recent developments, we suggest these two journals: the Journal of College and University Law, published twice a year by NACUA and focusing exclusively on postsecondary education; and the Journal of Law and Education, which covers elementary and secondary as well as postsecondary education, published quarterly by Jefferson Lawbook Company, Cincinnati, Ohio.
The overall goal for this sixth edition remains much the same as the goal for the first edition, set out in its preface. We hope that this book will provide a basis for the debate concerning law's role on campus, for improved understanding between attorneys and academics, and for effective relationships between administrators and their counsel. The challenge of our age is not to remove the law from the campus or to marginalize it. The law is here to stay, and it will continue to play a major role in campus affairs. The challenge of our age, rather, is to make law more a beacon and less a fog. The challenge is for law and higher education to accommodate one another, preserving the best values of each for the mutual benefit of both. Just as academia benefits from the understanding and respect of the legal community, so law benefits from the understanding and respect of academia.
William A. KaplinWinchester, VABarbara A. LeeNew Brunswick, N.J.Neal H. HutchensOxford, MSJacob H. RooksbySpokane, WAAugust 2018
Note
1
Also, beginning with the third edition, we introduced a new book to serve the needs of the student affairs staff:
A Legal Guide for Student Affairs Professionals
. Beginning with the fourth edition, we introduced a new book for students and independent learners of higher education law and policy:
The Law of Higher Education: Student Version
. Both books draw substantially on material from the pertinent edition of
The Law of Higher Education
.
Acknowledgments
Many persons graciously provided assistance to us in the preparation of this sixth edition. We are grateful for each person and each contribution listed below, and for all other support and encouragement that we received along the way.
We are grateful to colleagues whom we invited to update sections of the manuscript because of their special expertise. The work of our contributors is identified by a footnote reference at the beginning of each section that they revised.
Randolph M. Goodman and J. Barclay Collins, partners at K&L Gates, LLP in Washington, DC, assisted by Kristin A.M. Hoeberlein, an associate at the firm, and Alexander M. Goodman, a law student at University College London, revised and updated all of the sections on tax law, as they have done for several editions of this book. Elizabeth Minott, Senior Associate General Counsel at Rutgers University, revised and updated the subsection on laws regulating computer networks in Chapter 14. Nikaela Jacko Redd, Esq. of Silver Spring, MD, edited and updated Chapter 12.
Various colleagues reviewed sections of the sixth edition manuscript, providing helpful feedback on matters within their expertise and good wishes for the project: Steven J. McDonald, general counsel, Rhode Island School of Design; Michael A. Olivas, the William B. Bates Distinguished Chair in Law at the University of Houston and former Interim President of the University of Houston Downtown; Jean McDonald Rash, Associate Vice President for Enrollment Management, Rutgers University; and Frank Fernandez, Assistant Professor, Department of Educational Leadership and Policy Studies, University of Houston.
Our research assistants provided valuable help with the manuscript: Matthew Beddingfield, Meg Collins, Maggie Cooney, and Alexandra Popovnak assisted Jacob, who sends special thanks to Vinay Harpalani, Nathan A. Kottkamp, Colin P. McCarthy, and Nicole Prieto for their help and contributions to Chapter 14, which are noted as they appear in that chapter. Edward Phillips assisted Neal.
Barbara Kaplin typed manuscript inserts and maintained files as needed.
Gary Pavela kept us well supplied with issues of The Pavela Report. We are also grateful for the excellent work of Caroline Maria Vincent, who managed the entire production process, Richard Walshe, the copy editor, and Robert a. Saigh, who created the indexes. Their attention to detail and their helpful suggestions played an important role in readying the manuscript for publication.
The National Association of College and University Attorneys (NACUA) has hosted a website for several years on which we could post updates to the Fifth Edition and the Student Version, and now the Sixth Edition and its progeny. The website also contains our Instructor's Manual for faculty who adopted either the treatise or the Student Version as a classroom text. NACUA and its CEO, Kathleen Curry Santora, have supported our work in countless ways for over a decade, and we are most grateful to Kathleen and her staff for their support and encouragement. NACUA publications, particularly The Journal of College & University Law and NACUANotes, also provided us with important information and guidance in the development of most sections of the sixth edition.
Our spouses and families once again tolerated the years of intrusion that successive editions of “the book” have imposed on our personal lives. They encouraged us when this sixth edition seemed too overwhelming to ever end. And they looked forward (usually patiently) to the time when the sixth edition would finally be finished—and we would get a little breathing space before any of us dare mention the forbidden words “seventh edition.”
The Authors
William A. Kaplin is Professor of law emeritus at the Columbus School of Law, Catholic University of America, in Washington, DC, where he also served for many years as Special Counsel to the Office of General Counsel. He has been a visiting professor at Cornell Law School, and at Wake Forest University School of Law; and from 2007 to 2012 he was Distinguished Professorial Lecturer at Stetson University College of Law and Senior Fellow at its Center for Excellence in Higher Education Law and Policy. He was also a distinguished visiting scholar at the Institute for Higher Education Law and Governance, University of Houston, and a visiting scholar at the Institute for Educational Leadership, George Washington University. He is a former member of the Education Appeal Board at the U.S. Department of Education and the former editor of the Journal of College and University Law, and has served on the Journal's editorial board for many years. He was also a founding member of the U.S./U.K. Higher Education Law Roundtable that met every three years at New College, Oxford University, and a mentor/leader for the biannual Higher Education Law Roundtable for emerging scholars at the University of Houston Law Center.
Professor Kaplin received the American Council on Education's Borden Award, in recognition of the First Edition of The Law of Higher Education; and the Association for Student Judicial Affairs' D. Parker Young Award, in recognition of research contributions; and he has been honored twice by the National Association of College and University Attorneys, being named a Fellow of the Association (1990) and being presented the Life Member Award in 2018. He has also been honored through the establishment, by the Center for Excellence in Higher Education Law and Policy at Stetson University, of the William A. Kaplin Award for Excellence in Higher Education Law and Policy Scholarship, a national award presented annually to a leading scholar in the field.
In addition to the various editions and updates of The Law of Higher Education, Professor Kaplin's books include The Law of Higher Education Fourth Edition: Student Version (with Barbara Lee) (Jossey-Bass, Inc., 2007); Cases, Problems, and Materials for Use With The Law of Higher Education (with Barbara Lee) (NACUA, 2006); and A Legal Guide for Student Affairs Professionals, 2nd ed. (with Barbara Lee) (Jossey-Bass, Inc., 2009). Among his other books are State, School, and Family: Cases and Materials on Law and Education (with coauthors) (Matthew Bender, 2nd ed., 1979) and Constitutional Law: An Overview, Analysis, and Integration (Carolina Academic Press, 2004).
Bill Kaplin received his B.A. degree in political science from the University of Rochester and his J.D. degree with distinction from Cornell University, where he was editor-in-chief of the Cornell Law Review. He then worked with a Washington, D.C., law firm, served as a judicial clerk at the U.S. Court of Appeals for the District of Columbia Circuit, and was an attorney in the education division of the U.S. Department of Health, Education, and Welfare, before joining the Catholic University law faculty.
Barbara A. Lee is Senior Vice President for Academic Affairs and a Distinguished Professor of Human Resource Management, Rutgers University, in New Brunswick, New Jersey. She is a former dean of the School of Management and Labor Relations, and also served as associate provost, department chair, and director of the Center for Women and Work at Rutgers University. She chaired the editorial board of the Journal of College and University Law, served as a member of the Board of Directors of the National Association of College and University Attorneys, and was named a NACUA Fellow. She formerly served on the executive committee of the Human Resource Management Division of the Academy of Management. She is also a founding member of the U.S./U.K. Higher Education Law Roundtable. She received a distinguished alumni award from the University of Vermont in 2003 and the Daniel Gorenstein award from Rutgers University in 2009 for distinguished contributions to scholarship and service.
In addition to coauthoring the Third, Fourth, Fifth, and Sixth Editions of The Law of Higher Education and The Law of Higher Education, Student Version, supplements and updates to the main volume, as well as A Legal Guide for Student Affairs Professionals (1997), Professor Lee also coauthored Academics in Court (1987, with George LaNoue), as well as numerous articles, chapters, and monographs on legal aspects of academic employment. She serves as an expert witness in tenure, discharge, and discrimination cases, and is a frequent lecturer and trainer for academic and corporate audiences.
Barbara Lee received her B.A. degree, summa cum laude in English and French from the University of Vermont. She received an M.A. degree in English and a Ph.D. in higher education administration from The Ohio State University. She earned a J.D., cum laude from the Georgetown University Law Center. Prior to joining Rutgers University in 1982, she held professional positions with the U.S. Department of Education and the Carnegie Foundation for the Advancement of Teaching.
Neal H. Hutchens is a Professor and Chair in the Higher Education Department, School of Education at the University of Mississippi. Prior to his current appointment, he served as a faculty member at Pennsylvania State University. Hutchens was the 2015 recipient of the William A. Kaplin Award from the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. He serves on the Litigation Committee for the American Association of University Professors. He is also a past member of the Board of Directors for the Education Law Association.
Hutchens' scholarship has appeared in publications that include the University of Pennsylvania Journal of Constitutional Law, Journal of College and University Law, Counselor Education and Supervision, Kentucky Law Journal, West's Education Law Reporter, Journal of Law and Education, and Journal of Student Affairs Research and Practice. He is on the editorial board for The Review of Higher Education and for Education Law & Policy Review, and is a member of the authors' committee for West's Education Law Reporter.
Neal Hutchens earned a Ph.D. in education policy with a specialization in higher education from the University of Maryland. He has a J.D. from the University of Alabama School of Law, where he graduated summa cum laude and was a member of the Order of the Coif and of the Alabama Law Review.
Jacob H. Rooksby is Dean and Professor of Law at Gonzaga University School of Law in Spokane, Washington, where he also holds appointment as a Professor of Education. In addition to his administrative role, Dean Rooksby has taught courses in torts, intellectual property (IP) subjects, law and higher education, and social media and the law. He formerly practiced law with Cohen & Grigsby, P.C. in Pittsburgh, Pa., and McGuireWoods LLP in Richmond, Va., where he was a member of the firm's IP litigation/patents department and higher education practice team. He also has experience serving as an expert witness in intellectual property litigation.
Dean Rooksby's primary scholarship focus concerns the impact of IP law and policy on higher education. His book on IP law and policy issues in higher education, The Branding of the American Mind, was published in 2016 by Johns Hopkins University Press.
Dean Rooksby holds J.D., M.Ed. (social foundations of education), and Ph.D. (higher education) degrees from the University of Virginia. He earned his undergraduate degree, summa cum laude, in Hispanic studies and government from the College of William & Mary, where he was inducted into Phi Beta Kappa.
PART ONEPERSPECTIVES AND FOUNDATIONS
1Overview of Higher Education Law
Section 1.1. How Far the Law Reaches and How Loudly It Speaks
Law's presence on the campus and its impact on the daily affairs of postsecondary institutions have grown continuously at least since the 1960s. From then until the present, the volume and complexity of litigation in our society generally, and involving higher education specifically, have increased dramatically. The growth of government regulations, especially at the federal level, has also been dramatic and pervasive. The potential has increased for jury trials and large monetary damage awards, for court injunctions affecting institutions' internal affairs, for government agency compliance investigations, and even for criminal prosecutions against administrative officers, faculty members, and students. Many factors have contributed over the years to the development of this legalistic and litigious environment. Students' and parents' expectations have increased, spurred in part by increases in tuition and fees and in part by society's consumer orientation and marketing efforts by college and universities to attract students. Higher education institutions have also served as epicenters of social and political division occurring in the larger society on a range of issues. The greater availability of data that measures and compares institutions, and greater political savvy among students and faculty, has led to more sophisticated demands on institutions. Advocacy groups have used litigation against institutions as the means to assert faculty and student claims—and applicant claims as well, in suits concerning affirmative action in admissions and employment. Satellite campuses (including international locations for some institutions), off-campus programs, and distance learning have extended the boundaries of the campus, bringing into the fold of higher education a diverse array of persons whose interests may conflict with the interests of those groups whose concerns have traditionally dominated on campus. And an increasingly adversarial mindset, a decrease in civility, and a diminishing level of trust in societal institutions have made it more acceptable to assert legal claims at the drop of a hat.
