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- Herausgeber: John Wiley & Sons
- Kategorie: Fachliteratur
- Sprache: Englisch
A comprehensive, up-to-date reference for higher education law faculty, administrators, counsel, and students
This revised 7th Edition of The Law of Higher Education: Essentials for Legal and Administrative Practice offers updated information, analysis, and practical suggestions on a full range of legal issues pertinent to both public and private institutions. As a guide for coursework in programs preparing higher education lawyers and administrators for leadership roles, and as a reference for professionals in those fields, this book is essential for both students and practitioners. Covering the latest changes to laws in higher education, the 7th edition gives readers the most current possible understanding of higher education law. The book also contains a glossary of key terms and an appendix on how to read legal material for the non-law student. Each chapter is introduced by a discussion of key terms and ideas the reader will encounter.
The book thoroughly addresses the most important contemporary issues in education law: free speech, Title IX, academic freedom, institutional tort liability, racial harassment, employment discrimination, disability and reasonable accommodation, campus security, and student organizations are among the key topics that readers will come to understand in depth. There have been substantial recent changes in the laws governing these issues, and practitioners will need the updated content in this book to remain conversant in todays' higher education law and policy.
- Gain a thorough understanding of the central topics in higher education law, including free speech, nondiscrimination, religious free exercise, and many others
- Review the latest changes to federal laws governing colleges and universities
- Reference a glossary of terms, statute index, and other convenient features
- Learn about the American court system and how to read and analyze court opinions
The Law of Higher Education: Essentials for Legal and Administrative Practice is indispensable for anyone studying higher education administration, preparing for a career in higher education law, or seeking to learn more about law in higher education.
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Veröffentlichungsjahr: 2024
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Table of Contents
Cover
Table of Contents
Title Page
Copyright
Notice to Instructors
Notice of Website and Periodic Supplements for
The Law of Higher Education
Dedication
Preface
How the Book Was Developed
Organization and Content of the Book
A Note on Nomenclature
Recommendations for Using This Book and Keeping Up‐to‐Date
Endnote
Acknowledgments
The Authors
General Introduction: The Study of Higher Education LawnotesSet
A. The Universe of Education Law
B. The Governance of Higher Education
C. Sources of Higher Education Law
D. The Legal Relationships Within Institutions of Higher Education
E. The Law/Policy Distinction
F. The US Legal System as It Relates to Higher Education Law
Note
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
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. Institutional Management of Liability Risk
5
Notes
PART TWO: THE COLLEGE AND ITS GOVERNING BOARD AND STAFF
3 The College's Authority and Liability
Section 3.1. The Question of Authority
Section 3.2. Institutional Tort Liability
Section 3.3. Institutional Contract Liability
Section 3.4. Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)
Notes
4 The College and Its Employees
Section 4.1. Overview of Employment Relationships
Section 4.2. Employment Contracts
Section 4.3. Collective Bargaining
Section 4.4. Personal Liability of Employees
Section 4.5. Employment Discrimination
Section 4.6. Affirmative Action
2
Section 4.7. Application of Nondiscrimination Laws to Religious Institutions
Notes
PART THREE: THE COLLEGE AND ITS FACULTY
5 Special Issues in Faculty Employment
Section 5.1. Overview
Section 5.2. Faculty Contracts
Section 5.3. Faculty Collective Bargaining
Section 5.4. Application of Nondiscrimination Laws to Faculty Employment Decisions
Section 5.5. Affirmative Action in Faculty Employment Decisions
Section 5.6. Standards and Criteria for Faculty Personnel Decisions
Section 5.7. Procedures for Faculty Employment Decisions
Notes
6 Faculty Academic Freedom and Freedom of Expression
Section 6.1. General Concepts and Principles
Section 6.2. Academic Freedom in Teaching
Section 6.3. Academic Freedom in Research and Publication
Section 6.4. Academic Freedom in Religious Colleges and Universities
Notes
PART FOUR: THE COLLEGE AND ITS STUDENTS
7 The Student‐Institution Relationship
Section 7.1. The Legal Status of Students
Section 7.2. Admissions
Section 7.3. Financial Aid
Section 7.4. Student Housing
Section 7.5. Campus Computer Networks
Section 7.6. Campus Security
Section 7.7. Other Support Services
Section 7.8. Student Records
Notes
8 Student Academic Issues
Section 8.1. Overview
Section 8.2. Grading and Academic Standards
Section 8.3. Online Programs
Section 8.4. Academic Accommodations for Students with Disabilities
Section 8.5. Sexual Harassment of Students by Faculty Members
Section 8.6. Academic Dismissals and Other Academic Sanctions
Notes
9 Student Disciplinary Issues
Section 9.1. Disciplinary and Grievance Systems
Section 9.2. Disciplinary Rules and Regulations
Section 9.3. Procedures for Suspension, Dismissal, and Other Sanctions
Section 9.4. Student Protests and Freedom of Speech
Section 9.5. Speech Codes and the Problem of Hate Speech
3
Notes
10 Rights and Responsibilities of Student Organizations and Their Members
Section 10.1. Student Organizations
Section 10.2. Fraternities and Sororities
Section 10.3. The Student Press
Section 10.4. Athletic Teams and Clubs
Notes
PART FIVE: THE COLLEGE AND THE OUTSIDE WORLD
11 The College and Government
Section 11.1. Local Government Regulation
Section 11.2. State Government Regulation
Section 11.3. Federal Government Regulation
Section 11.4. Federal Aid‐to‐Education Programs
Section 11.5. Civil Rights Compliance
3
Notes
12 The College and External Private Entities
Section 12.1. The Education Associations
Section 12.2. Business Partners
Notes
Appendix A: Constitution of the United States of America: Provisions of Particular Interest to Postsecondary Education
Article I
Article II
Article III
Article IV
Article VI
Amendment I
Amendment IV
Amendment V
Amendment VI
Amendment X
Amendment XI
Amendment XIII
Amendment XIV
Amendment XXVI
Appendix B: The American Court System
Notes
Appendix C: Reading and Analyzing Court Opinions
Appendix D: Glossary of Legal Terms
Bibliography
Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11
Chapter 12
Statute Index
Case Index
Subject Index
End User License Agreement
List of Illustrations
General Introduction: The Study of Higher Education Law
Figure I.1 The Education Law Universe
Figure I.2 The External Law Circumscribing the Internal Law
Figure I.3 Internal Legal Relationships in Higher Education Institutions
Figure I.4 External Legal Relationships in Higher Education Institutions
Chapter 4
Figure 4.1 Equal Protection Tiers of Scrutiny
Chapter 8
Figure 8.1 A Typology of Title IX Claims
Chapter 9
Figure 9.1 The Public Forum Doctrine
Guide
Cover
Table of Contents
Title Page
Copyright
Notice to Instructors
Notice of Website and Periodic Supplements for The Law of Higher Education
Dedication
Preface
Acknowledgments
The Authors
General Introduction: The Study of Higher Education Law
Begin Reading
Appendix A: Constitution of the United States of America
Appendix B: The American Court System
Appendix C: Reading and Analyzing Court Opinions
Appendix D: Glossary of Legal Terms
Bibliography
Statute Index
Case Index
Subject Index
End User License Agreement
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William A. Kaplin
Barbara A. Lee
Neal H. Hutchens
Jacob H. Rooksby
The Law of Higher Education
Essentials for Legal and Administrative Practice
Copyright © 2024 by John Wiley & Sons, Inc. All rights reserved, including rights for text and data mining and training of artificial technologies or similar technologies.
Published by Jossey‐BassA Wiley Imprint111 River St, Hoboken, NJ 07030www.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 http://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.
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Jossey‐Bass also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books.
Library of Congress Cataloging‐in‐Publication Data
Names: Kaplin, William A., author. | Lee, Barbara A., author. | Hutchens,Neal H., author. | Rooksby, Jacob H., 1982‐ author.
Title: The law of higher education : essentials for legal and administrative practice / William A. Kaplin, Barbara A. Lee, Neal H. Hutchens, Jacob H. Rooksby.
Description: San Francisco, CA : Jossey‐Bass, 2024. | Includes index.
Identifiers: LCCN 2024014718 (print) | LCCN 2024014719 (ebook) | ISBN 9781394196289 (paperback) | ISBN 9781394196302 (adobe pdf) | ISBN 9781394196296 (epub)
Subjects: LCSH: Universities and colleges—Law and legislation—United States. | School management and organization—Law and legislation—United States. | Universities and colleges—United States—Administration.
Classification: LCC KF4225 .K375 2024 (print) | LCC KF4225 (ebook) | DDC 344.73/074—dc23
LC record available at https://lccn.loc.gov/2024014718
LC ebook record available at https://lccn.loc.gov/2024014719
Cover Design: Wiley
Notice to Instructors
The authors have prepared a compilation of teaching materials for classroom use (see the link at the end of this notice) that is available in electronic format free of charge for instructors who adopt this book as a required text. In addition, we have a website supporting the book; it includes new developments, clarifications, and errata that update and supplement this book. We have also prepared an Instructor's Manual that provides suggestions on using this book as a course text and on organizing and teaching higher education law courses. It is available, only to instructors, on the website. This website is hosted by the National Association of College and University Attorneys (NACUA) and is available at https://www.nacua.org/resource‐library/resources‐by‐type/the‐law‐of‐higher‐education. The teaching materials, Cases, Problems, and Materials for Use with the Law of Higher Education is for instructors and students in courses on higher education law or administration, as well as for leaders and participants in workshops that address higher education legal issues. These teaching materials include court opinions carefully edited by the authors and keyed to this book, notes and questions about the cases, short problems designed to elicit discussion on particular issues, a series of large‐scale problems suitable for role‐playing, and guidelines for analyzing and answering all the problems. Cases, Problems, and Materials is published by NACUA (which also hosts the website for this book and is available in electronic format that can be downloaded from NACUA's website at https://www.nacua.org/resource‐library/resources‐by‐type/the‐law‐of‐higher‐education‐6th‐edition/cases‐problems‐and‐materials. Any instructor who has adopted this book as a required course text may download a copy of Cases, Problems, and Materials, or selected portions of it, free of charge and reproduce the materials for distribution to the students in the course. No other reproduction, distribution, or transmission is permitted. For hard copies, direct inquiries and orders to:
Assistant Director of Legal Resources
National Association of College and University Attorneys
Suite 620, One Dupont Circle, NW
Washington, DC 20036
(202) 833–8390; Fax (202) 296–8379
Further instructions for downloading or purchasing Cases, Problems, and Materials are on the NACUA website https://www.nacua.org/resource‐library/resources‐by‐type/the‐law‐of‐higher‐education.
Notice of Website and Periodic Supplements for The Law of Higher Education
Essentials for Legal and Administrative Practice
The authors, in cooperation with the publisher, have made arrangements for two types of periodic updates for this book. First, the National Association of College and University Attorneys (NACUA) has generously agreed to host a website for this book to provide periodic postings of new developments and clarifications that update and supplement the book. This website is available to all readers and may be accessed through the NACUA website https://www.nacua.org/resource‐library/resources‐by‐type/the‐law‐of‐higher‐education. These updating services are intended as 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.
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, especially the instructors and students, who in numerous and varied ways have helped raise this book from its origins through many subsequent versions, and to all those members who will face the great challenges of law and policy that will shape higher education's future.
Preface
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 they have legal implications as well. For example:
A staff member may decide to become a whistleblower and assert that another college employee is violating the law. If the complaining staff member's performance has been problematic, and “just cause” exists for dismissal, may the college discharge the whistleblowing staff member?
A tenured faculty member may have been accused of sexually harassing a student by requiring the student to complete a project that the student finds offensive. What standards and processes should be used to determine whether the faculty member should be discharged, disciplined, or reprimanded?
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 group of students petitions the administration to develop a “hate speech” code because they believe it will reduce the number of bias incidents on campus. Can a public institution enforce such a provision?
A wealthy alumna may call the president and offer to make a multimillion dollar donation for a building to be named for a controversial political figure. Should the president accept the donation and follow the potential donor's wishes?
To assist college administrators and their counsel, and students and instructors who wish to study, research, or teach about issues such as these, and innumerable others, we have prepared this book. The Law of Higher Education: Essentials for Legal and Administrative Practice provides foundational information, in‐depth analysis, and practical suggestions on a wide array of legal issues faced by public and private institutions. The discussions draw on pertinent court opinions, constitutional provisions, statutes, administrative regulations, and related developments. In order to enhance readability and keep the book a manageable size, we have only occasionally included text or footnote citations to resources for further study and research, such as selected journal articles, books, and websites. We have, however, included a bibliography of such resources at the end of this book.
How the Book Was Developed
The precursor to this volume, The Law of Higher Education treatise, first published in 1978, has, for over five decades, discussed and analyzed many of the most salient legal issues facing colleges and universities. The law has changed substantially over those fifty‐odd years, and the law and many other developments have changed colleges and universities in ways too numerous to mention. At this point, nearly midway through the third decade of the twenty‐first century, we have decided to combine the book's original function as a treatise with an additional focus on preparing students of higher education law for current and future challenges as they provide legal advice to institutions of higher education or serve in an administrative role.
Guided by our own experiences in serving in academic leadership roles and in advising higher education clients over many years, we have selected the topics that we believe are of greatest importance and interest to higher education counsel, administrators, and students of higher education law and their instructors. We have given primary consideration to the significance of the topic for the development of higher education law and policy, the topic's currency or timelessness for administrators of colleges and universities and their legal counsel, and its usefulness in illustrating particular legal problems or the application of particular legal principles. The issues we have emphasized for each topic are usually ones that administrators and their legal advisors, faculty members, or students could encounter at virtually any institution of higher education in the country (or, sometimes, in the world). In developing these issues, we have focused not only on the applicable law but also on pertinent policy considerations and on implications for practice.
We had to make difficult choices about which topics to omit or to treat much less expansively than we would have liked (and they would have merited) in order to keep the book to a single volume. For example, we devoted considerable attention to institutional liability for tort claims, faculty employment issues, academic freedom, student affairs, and academic issues concerning students. However, we omitted many of the topics and discussions involving the employment of administrators and staff members. We also focused only briefly on government regulation of higher education, providing overviews of each level of government and illustrative examples of regulatory activities at each level. For the federal government, for example, we retained a brief discussion of federal copyright law and a discussion of federal civil rights laws (such as Title IX) prohibiting discrimination in programs that receive federal funding. Similarly, we focused briefly on legal and policy issues related to private educational associations, in particular the American Association of University Professors (AAUP), the accrediting agencies, and the intercollegiate athletics associations, and on college and university relationships with the business world—all of which could fill several chapters, if not another book. But we retained overviews and illustrative examples for each of these topics. We have updated the content from previous editions of The Law of Higher Education to account for the most important developments occurring as of the press deadline for this book. In addition, we have prepared study aids designed specifically for students of higher education law and their instructors, and integrated them into this book. These enhancements include the following:
Introductory materials, titled “General Introduction: The Study of Higher Education Law,” that lay the foundation for, and facilitate the study of, the subject matter, and also include a section providing guidance for students who do not have background or training in the law
An appendix (Appendix B) that provides an overview of the American system of courts and highlights key distinctions between federal and state courts, and between trial and appellate courts
Another appendix (Appendix C) that provides practical guidelines for reading and analyzing judicial opinions
Another appendix (Appendix D) that presents a glossary of legal terms used in this book
Overviews at the beginning of chapters that introduce the topics and concepts to be addressed in each chapter
Figures spread throughout the book that illustrate particular legal concepts and distinctions
In addition to these study aids that are incorporated into this book, we have also prepared a separate volume of edited cases and practice problems, which is available to instructors for distribution to students. (See “Notice to Instructors” in the front matter.)
As did previous versions of The Law of Higher Education, this book 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 to online learning as well. The book also reflects the same perspective as the earlier editions 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.
Organization and Content of the Book
We have organized this book into twelve chapters. These chapters are in turn organized into five parts: (1) Perspectives and Foundations; (2) The College and Its Governing Board and Staff; (3) The College and Its Faculty; (4) The College and Its Students; and (5) The College and the Outside World. Each chapter is divided into numerous sections and subsections with their own titles.
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 10 develop the legal concepts and issues that define the internal relationships among the various members of the campus community and address the law's impact on particular roles, functions, and responsibilities of students, faculty members, and trustees and administrators. Chapter 11 is concerned with the postsecondary institution's external relationships with government at the federal, state, and local levels. This chapter examines broad questions of governmental power and process that cut across all the internal relationships and administrative functions considered in Chapters 3 through 10. Chapter 12 also deals with the institution's external relationships, but the relationships are those with the private sector rather than with government. This chapter explores the various national and regional education associations with which postsecondary institutions interact, as well as the various research ventures that institutions engage in with private entities from the commercial world.
Prior to the first chapter, we have included a general introduction with six sections. After the last chapter, we have included a bibliography of resources for research and independent study, as well as four appendixes containing various study aids.
A Note on Nomenclature
The book uses the terms “higher education” and “postsecondary education” to refer to education that follows a high school (or K–12) education. Usually, these terms are used interchangeably; but occasionally “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 usually used interchangeably; but occasionally “postsecondary institution” is used in the broader sense just suggested, 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 the above terms interchangeably.
The term “public institution” generally means an educational institution operated under the auspices of a state, county, or occasionally 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”), or is otherwise formally affiliated with a church or sectarian organization (a “religiously affiliated institution”), as well as an institution that has no affiliation with an outside religious organization but nevertheless proclaims a religious mission and is guided by religious values.
Recommendations for Using This Book and Keeping Up‐to‐Date
There are some precautions to keep in mind when using this book. The legal analyses throughout the book, and the 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 any legal problem that an institution, administrator, student, or faculty member may face in real life. 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, p. 1), and the law moves especially fast in its applications to postsecondary education. Thus, we suggest that instructors and students keep abreast of ongoing developments concerning the topics and issues in this book. Various aids (described next) are available for this purpose.
First, we maintain a website, hosted by the National Association of College and University Attorneys (NACUA), Washington, DC. (www.nacua.org), on which we announce or post pertinent new developments, keying them to this book. For further information on the website and the supplements, see page vii in the front matter of this book.
For news reporting of current events in higher education generally, but particularly for substantial coverage of legal developments, instructors or students may wish to consult the Chronicle of Higher Education, published weekly in hard copy and daily on weekdays online (https://www.chronicle.com); or Inside Higher Ed, published daily on weekdays online (https://insidehighered.com).
Other resources will be helpful not only for keeping abreast of recent developments but also for identifying pertinent research. The database of the Educational Resources Information Center (ERIC) (https://eric.ed.gov), sponsored by the US Department of Education, contains 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.
Several specialty journals provide extended legal analysis on recent developments as well as classical concerns. The Journal of College and University Law, published by the National Association of College and University Attorneys (NACUA), focuses exclusively on postsecondary education. Several other journals cover legal issues in postsecondary education as well as in elementary and secondary education: the Journal of Law and Education is published by the University of South Carolina Joseph F. Rice School of Law; the BYU Education & Law Journal is published by the McKay School of Education and J. Reuben Clark Law School at Brigham Young University; and West's Education Law Reporter is published by Thomson West and publishes articles on education law, including postsecondary education, along with publishing selected state and federal court opinions.
Endnote
The goal of this book is to provide a base for the debate concerning law's role on campus, for effective relationships between administrators and their counsel, for the effective teaching and learning of higher education law, and for improved understanding between the academic and legal worlds. 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 be 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. Kaplin, Winchester, VA
Barbara A. Lee, New Brunswick, NJ
Neal H. Hutchens, Lexington, KY
Jacob H. Rooksby, Spokane, WA
February 2024
Acknowledgments
Many persons graciously provided assistance to us in the preparation of this book. We are grateful for each person and each contribution listed here, 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 previous editions of The Law of Higher Education 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.
Elizabeth Minott, Senior Associate General Counsel at Rutgers University, revised and updated the subsection on laws regulating computer networks. Nikaela Jacko Redd. Esq. of Silver Spring, Maryland, edited and updated the local government sections of Chapter 11.
The National Association of College and University Attorneys (NACUA) has hosted a website for several years on which we could post updates to previous editions of The Law of Higher Education. Updates to this book will be posted twice yearly. The website also contains our Instructor's Manual for faculty members who adopted this book as a classroom text. NACUA and its prior 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, as we are to Ona Alston Dosunmu, NACUA's current CEO, as well as Natalie Sinacope, Deputy CEO and Executive Director of Legal Resources and Jacquelynn Nichole Rich Fredericks, Senior Legal Resources Attorney. NACUA publications, particularly The Journal of College and University Law and NACUA Notes, also provided us with important information and guidance in the development of most sections of this book.
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 book seemed too overwhelming to ever end. And they looked forward (usually patiently) to the time when the book would finally be finished—and we would get a little breathing space before any of us dare mention the forbidden words “the next 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 US 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 (with Barbara Lee) (Jossey‐Bass, Inc., 2nd ed., 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 BA degree in political science from the University of Rochester and his JD degree with distinction from Cornell University, where he was editor‐in‐chief of the Cornell Law Review. He then worked with a Washington, DC, law firm, served as a judicial clerk at the US Court of Appeals for the District of Columbia Circuit, and was an attorney in the education division of the US Department of Health, Education and Welfare, before joining the Catholic University law faculty.
Barbara A. Lee is the former Senior Vice President for Academic Affairs and currently 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 is the editor of the Journal of College & University Law and chaired its editorial board, 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 BA degree, summa cum laude in English and French from the University of Vermont. She received an MA degree in English and a PhD in higher education administration from The Ohio State University. She earned a JD, cum laude from the Georgetown University Law Center. Prior to joining Rutgers University in 1982, she held professional positions with the US Department of Education and the Carnegie Foundation for the Advancement of Teaching.
Neal H. Hutchens is a Professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky, where he has served as chair. Prior to his current appointment, he served as a faculty member at the University of Mississippi, where he was the Founding Chair of the Department of Higher Education, and 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's 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 PhD in education policy with a specialization in higher education from the University of Maryland. He has a JD 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 Smithmoore P. Myers Dean of Gonzaga University School of Law, where he also is a tenured professor of Law & Leadership Studies. He is the author of a book on intellectual property law and policy issues in higher education and is an expert on IP law, torts, higher education law, and technology transfer. Rooksby is an elected member of the American Law Institute and a Fellow of the American Bar Foundation. He holds JD, MEd, and PhD degrees from the University of Virginia, and an AB, summa cum laude, from the College of William & Mary, where he majored in Hispanic Studies and was inducted into Phi Beta Kappa. Before entering academia he practiced with McGuireWoods LLP. He has been affiliated with two law firms since becoming a full‐time academic: Denton Cohen & Grigsby (in Pittsburgh, PA) and FIG. 1 Patents, PLLC (in Spokane, WA).
General Introduction: The Study of Higher Education Law
In the study of higher education law, as with most learning, it is important to begin with a foundation on which to build. This General Introduction to the book, combined with Chapter 1, provides this foundation. The materials in the General Introduction have two purposes: (1) to introduce, illustrate, and integrate particular foundational matters that are discussed in greater depth in Chapter 1 and (2) to help students to develop a framework for organizing their thinking about, and integrating, the materials that are contained in the succeeding chapters of this book.
A. The Universe of Education Law
Higher education is part of a broader universe of education law. This universe encompasses not only the law regarding higher and other postsecondary education but also the law regarding “lower” education, that is, elementary and secondary education (K–12) as well as preschool education. These “higher” and “lower” sectors can be further divided into public education and private education sectors, as indicated in Figure I.1, thus producing a universe of four quadrants: public higher education, public lower education, private higher education, and private lower education. Finally, the private education quadrants can be subdivided into private education provided by secular institutions and private education provided by religious institutions, as Figure I.1 also indicates. Each sector displayed in Figure I.1 is legally distinct from the other sectors. The boundary lines within the education law universe thus represent important legal distinctions—distinctions undergirding legal analysis of education law problems. (For an example, see State ex rel. Gallwey v. Grimm, 48 P.3d 274, 279–84 (Wash. S. Ct., 2002) [state constitution's restriction on state funding of “schools” does not apply to higher education].) Because the applicable sources of law (Section 1.4), the legal reasoning, and the results or conclusions reached may differ from one sector to another, it is important to begin analysis of each judicial opinion by determining the sector of the education law universe with which it deals. Similarly, when first approaching a new issue or problem, it is important to ascertain its location within this universe.
PUBLIC
EDUCATION
PRIVATE EDUCATION
Secular
Sectarian
HIGHER
EDUCATION
Public Colleges, Universities, and Community Colleges
Private, Secular Colleges and Universities
Private, Religiously Affiliated Colleges and Universities
LOWER
EDUCATION
Public Elementary Schools, Secondary Schools, and Pre‐schools
Private, Secular Elementary Schools, Secondary Schools, and Pre‐schools
Private, Religiously Affiliated Elementary Schools, Secondary Schools, and Pre‐schools
Figure I.1 The Education Law Universe
In a higher education law course, therefore, one would ask, Does this case or problem deal with public higher education or with private higher education? (See Section 1.5 for discussion of this distinction.) If it is private higher education, then one would ask, Does this case or problem deal with secular higher education or with religious higher education? (See Section 1.6 for discussion of this distinction.) To further expand understanding, one could also ask whether the problem or case would be reasoned or resolved differently—and why—if it had involved private rather than public (or public rather than private) higher education, or had involved religious rather than secular (or secular rather than religious) higher education. Finally, for the broadest perspective, one might ask whether the case or problem would be reasoned or resolved differently if it had involved lower education rather than higher education.
These distinctions and their significance in various contexts are emphasized throughout this book.
B. The Governance of Higher Education
Early in the study of higher education law, attention should be given to the governance of higher education, that is, the structures and processes by which higher education institutions are governed. As more fully explained in Section 1.3, the concept of governance can be divided into two categories: internal governance (that is, within the institution) and external governance (that is, external to the institution); and external governance, in turn, may be further divided into two subcategories: public external governance (that is, by government) and private external governance (that is, by private associations).
A focus on governance is important to the student of higher education law because, as also explained in Section 1.3, “[g]overnance structures and processes provide the legal and administrative context within which issues and disputes arise” and “the framework within which parties seek to resolve problems and disputes.” Since the structures and processes for higher education governance differ markedly from those for elementary and secondary education, the basic boundary line in the Education Law Universe (Section A) is equally applicable to matters of governance. Similarly, the boundary lines between public and private higher education institutions, and between private secular and private religious institutions, also indicate parallel distinctions in the governance of higher education. Thus, just as the law may vary from one sector to another of the education law universe, the governance structures and processes may vary as well. Whenever one is analyzing a legal problem or reading a judicial opinion, therefore, it is helpful to begin not only by determining the sector of the universe within which the problem or case falls but also by identifying the particular governance structure or process from which the problem or case arose and through which it might be (or might have been) resolved.
C. Sources of Higher Education Law
As a keystone of their internal governance systems, higher educational institutions create “internal law” that delineates authority and rights, and embodies the rules and procedures, by which institutions govern themselves. There are three main sources of internal law: institutional rules and regulations (Section 1.4.3.1), institutional contracts (Section 1.4.3.2), and academic custom and usage (Section 1.4.3.3). Circumscribing this internal law is the external law (here, public external law) created by the federal government and state and local governments through their own governance processes (Section 1.4.2). These sources of law, and the interrelations among them, are another factor to consider—along with the education law universe sectors (Section A) and the governance structures and processes (Section B)—when reading judicial opinions or analyzing problems in higher education law. It will be helpful, therefore, to identify the pertinent source(s) of law that provide(s) the basis for the judicial opinion or that can be used to analyze the problem. Figure I.2 depicts the various sources of law and the order in which each source “trumps” other sources. Each ring of law in the figure is superior to the other rings that are farther inside and inferior to the other rings of law that are farther outside. Thus, when there is inconsistency or conflict between two applicable sources of law, the law in the ring farthest from the center will prevail.
Figure I.2 The External Law Circumscribing the Internal Law
D. The Legal Relationships Within Institutions of Higher Education
The internal governance of an institution of higher education (see Section B) is generally the responsibility of the board of trustees or board of regents (see Section 3.1). The board, as the entity vested with the institution's legal authority, has legal relationships with the institution's officers, administrators, and staff members; with its faculty members; and with its students. Each relationship encompasses both questions of authority (usually the board's [or institution's] authority) and questions of rights (usually the rights of officers, administrators, and staff, of faculty members, or of students). In turn, there are legal relationships among the institution's officers, administrators, and staff; its faculty members; and its students. These are the three “secondary relationships” depicted in Figure I.3.1 The secondary relationships also encompass both questions of authority and questions of rights. (For an interesting example of such secondary relationships, see Woodruff v. Ohman, 29 Fed. Appx. 337, 162 Ed. Law Rep. 707 (6th Cir. 2002), and 166 Fed. Appx. 212 (6th Cir. 2006) [faculty member/staff member conflict].)
Figure I.3 Internal Legal Relationships in Higher Education Institutions
The three primary legal relationships depicted in Figure I.3 typically are the primary focus of higher education law. Chapters 3 and 4 focus on the legal relationships between the institution (board) and its officers, administrators, and staff. Chapters 5 and 6 focus on the legal relationships between the institution (board) and its faculty members; and Chapters 7 through 10 focus on the legal relationship between the institution (board) and students. In addition, the institution has legal relationships with the outside world—for example, with government agencies, private education associations, and corporate research partners and other commercial entities. These external relationships are depicted in Figure I.4 and are addressed in Chapters 11 and 12. For external relationships, as for internal, there are also secondary relationships that may develop between external entities and the institution's officers, administrators, staff, faculty members, or students. For example, a government agency may award a student financial assistance, thus creating a legal relationship between the agency and the student with respect to the conditions for retaining the assistance. These secondary external relationships are not depicted in Figure I.4.
Figure I.4 External Legal Relationships in Higher Education Institutions
External relationships often intersect with and help define the relationships that are directly depicted in Figure I.4. The rights that faculty members may assert against their institutions (boards), for example, such as rights to nondiscrimination in employment, are created in part by federal law; and the federal government's obligation to enforce this external law (see Section 5.4.1) creates a legal relationship between the federal government and postsecondary institutions.
