Contemporary Issues in Higher Education Law

by Beckham, Joseph; Dagley, David

• ISBN13: 9781565341173
• ISBN10: 1565341171
• Format: Paperback
• Copyright: 2005-07-31
• Publisher: Education Law Assn

Table of Contents

Public Colleges and Universities
Introduction	19	(1)
State Systems	20	(1)
Constitutional Provisions	20	(1)
Legislative Delegation	21	(1)
Institutional Governing Boards	22	(1)
Fiduciary Responsibility	23	(1)
Appointment and Removal of Board Members	24	(1)
Board Officers	25	(1)
Sunshine Laws	25	(2)
President	27	(1)
Agency	28	(1)
Legal Counsel	29	(6)
Private Colleges and Universities
Introduction	35	(1)
State-Action Doctrine	35	(2)
Organization and Management of Private Colleges and Universities	37	(2)
Regulation of Private Colleges and Universities	39	(1)
Colleges and Universities Doing Business in Other States	40	(4)
Administration and Management	44	(1)
Faculty in Private Colleges and Universities	44	(5)
Faculty Conduct and Published Contract Language	46	(1)
Compliance with Contract Language	47	(1)
Good Faith and Fairness in Contract Enforcement	48	(1)
Students in Private Colleges and Universities	49	(3)
Student Conduct and Published Contract Language	49	(1)
Compliance with Contract Language	50	(2)
Good Faith and Fairness in Contract Enforcement	52	(1)
Conclusion	52	(11)
Religious Colleges and Universities
Introduction	63	(1)
Changing Nature of Religious Colleges and Universities	64	(3)
Changes in Religious Colleges and Universities Resulting from Laws and Court Decisions	67	(1)
Governance of Religious Colleges and Universities: State Regulation	68	(1)
Governance: Religious Responsibilities and Fiduciary Duty	69	(3)
Faculty in Religious Colleges and Universities	72	(5)
Students in Religious Colleges and Universities	77	(2)
Conclusion	79	(10)
Faculty
Faculty Employment Issues	89	(42)
Employment Contracts	89	(1)
Express and Implied Contracts	90	(1)
Oral Representations	90	(1)
Agency	91	(1)
Contract Types	92	(1)
Tenure	93	(2)
De Facto Tenure	95	(1)
Collective Bargaining	95	(2)
Adverse Employment Decisions	97	(1)
Progressive Discipline	98	(1)
Good or Just Cause	98	(1)
Unprofessional Conduct	99	(2)
Insubordination	101	(1)
Neglect of Duty	101	(1)
Immorality	102	(1)
Competency	103	(1)
Reduction-in-force	104	(1)
Constructive Discharge	105	(1)
Contract Rescission	106	(1)
Due Process	106	(1)
Property and Liberty Interests	107	(1)
Substantial Compliance	108	(1)
Free Speech	109	(2)
Public Concern	111	(1)
Speech as a Motivating Factor	112	(1)
Conduct Unrelated to Free Speech	112	(2)
Balancing Interests	114	(1)
Academic Freedom	115	(2)
Classroom Speech	117	(3)
Discrimination in Employment	120	(1)
Legitimate, Non-discriminatory Reasons	120	(1)
Conclusions	121	(10)
Non-Academic Personnel
Introduction	131	(1)
Organization	132	(1)
Hiring and Promotion	133	(2)
Federal Protections	135	(4)
Title VII	135	(1)
The Age Discrimination in Employment Act (ADEA) of 1967	136	(1)
The Equal Pact Act of 1963	137	(1)
Section 504 and the Americans with Disabilities Act	137	(1)
Bona Fide Occupational Qualifications	138	(1)
Evaluation, Discipline, and Termination	139	(1)
Unions and Collective Bargaining	140	(2)
Students as Employees	142	(4)
Conclusion	146	(5)
Faculty Speech
Introduction	151	(1)
Faculty/Staff as Citizen	152	(3)
Faculty/Staff as Employee	155	(10)
Faculty/Staff as Educator: Faculty Academic Freedom	165	(1)
Classroom Speech of Faculty	166	(4)
Grading Policies	170	(1)
Institutional Academic Freedom	171	(12)
Tort Liability
Introduction	183	(1)
Influence of Tort Law on Higher Education	183	(1)
Negligence	184	(13)
Elements of Negligence	184	(4)
Institutional Duty of Care	188	(5)
Release of Liability	193	(2)
Campus Crime Reporting	195	(1)
Crime Prevention Checklist	196	(1)
Defamation	197	(3)
Fraudulent Misrepresentation	200	(3)
Concluding Remarks	203	(6)
Contracts With Students
Introduction	209	(2)
The Student-Institution Contract: Case Law	211	(16)
Academic Issues	211	(1)
Judicial Deference to Academic Decisions	211	(2)
Admissions	213	(1)
Grades	214	(1)
Degrees	215	(1)
Changes in Degree Requirements	216	(1)
Academic Dismissals	216	(2)
Program Termination	218	(2)
Disciplinary Policies	220	(1)
Judicial Deference to Disciplinary Decisions	221	(2)
Express Disciplinary Standards	223	(1)
Educational Malpractice and Consumer Issues	224	(1)
Educational Malpractice Claims Veiled As Contract Claims	224	(3)
Consumer Protection	227	(1)
Conclusion	227	(8)
Student Speech
Introduction	235	(1)
Student Protest	235	(5)
Recognized Student Groups	240	(2)
Student Activity Fees	242	(2)
Student Publications	244	(2)
Student Government	246	(1)
Fraternities and Sororities	246	(1)
Hate Speech	247	(2)
Student Speech in Academic Contexts	249	(8)
Student Equal Protection and Due Process
Introduction	257	(1)
Levels of Judicial Review Under Equal Protection	257	(1)
Equal Protection and Affirmative Action in Admissions	258	(4)
Due Process in the Disciplinary Context	262	(3)
Due Process in the Academic Context	265	(2)
Substantive Due Process	267	(1)
Due Process in Degree Revocation	268	(3)
Conclusions	271	(6)
Sexual Harassment
Introduction	277	(1)
Legal Context	277	(6)
Title VII of the Civil Rights Act of 1964	277	(2)
Title IX of the Education Amendments of 1972	279	(3)
Other Grounds to Challenge Sexual Harassment	282	(1)
Recent Litigation Involving Higher Education	283	(7)
Employees as Victims	284	(2)
Students as Victims	286	(4)
Guidance for University Personnel	290	(7)
Employment Discrimination Under Title VII
Introduction	297	(1)
Title VII Overview	298	(1)
Disparate Impact	299	(1)
Disparate Treatment	300	(10)
Racial and National Origin Discrimination	301	(3)
Religious Discrimination	304	(3)
Sex Discrimination	307	(3)
Retaliation	310	(3)
Reverse Discrimination/Affirmative Action	313	(4)
Re-examining Plaintiff's Burden	317	(1)
Conclusion	318	(5)
Disability Law
Introduction	323	(1)
Students and Applicants	324	(7)
Qualifying as Disabled	324	(1)
Admission/Readmission	325	(1)
Reasonable Accommodations and Modifications	326	(1)
Waiver of Degree and Program Requirements	327	(1)
Unreasonable Accommodations and Expectations	327	(1)
No Reasonable Accommodation Exists	328	(1)
Duty to Investigate	328	(1)
Access	329	(1)
Dismissal or Removal	329	(1)
Academic Dismissal	329	(1)
Behavioral Dismissal	330	(1)
Postgraduation Testing Accommodations	330	(1)
Employees & Employers	331	(9)
Qualifying as ``Disabled'' and ``Qualified''	332	(2)
The Hiring Process	334	(1)
Preemployment	334	(1)
Preoffer Interview and Initial Screening	335	(1)
Conditional Job Offer	336	(1)
Postoffer Interview and Examinations	337	(1)
Confirmed Job Offer	337	(1)
Reasonable Accommodation	338	(1)
Undue Hardship	339	(1)
Terms and Conditions of Employment	339	(1)
Compensation and Benefits	339	(1)
Transfer and Reassignment	339	(1)
Adverse Employment Decisions	340	(1)
Recommendations for College and University Practitioners	340	(7)
Students	341	(1)
Employees	341	(6)
Intellectual Property
Introduction	347	(1)
Copyright	348	(21)
Exclusive Rights	350	(1)
Limitations on Exclusive Rights	350	(1)
Fair Use	351	(4)
Library Reproduction	355	(2)
Classroom Use	357	(1)
Copyright Ownership, Duration, and Registration	358	(1)
Ownership	358	(3)
Duration	361	(2)
Registration	363	(1)
Copyright Infringement and Remedies	363	(1)
Copyright Law in the Digital Age: The Digital Millennium Copyright Act	364	(5)
Patents	369	(9)
Types of Inventions and Discoveries	370	(1)
Plant and Design Patents	371	(1)
Novelty, Utility, and Nonobviousness: Issues of Patents and Priority	371	(3)
Ownership and Patentees' Rights	374	(1)
Policymaking and Institutional Ownership Rights	375	(2)
Patent Infringement and Remedies	377	(1)
Trademarks	378	(17)
Distinctiveness, Priority, and Trademark Registration	379	(2)
Trademark Infringement and Unfair Competition	381	(4)
Domain Names and Protection of Trademarks in Cyberspace	385	(10)
Business Management
Introduction	395	(2)
Revenue Sources	397	(4)
Construction Contracts	401	(1)
Goods and Services	402	(1)
Private Sector Competition	403	(3)
Property Management	406	(1)
Intellectual Property Management	407	(1)
Land Use and Zoning	408	(2)
Taxation	410	(9)
Athletics
Introduction	419	(1)
Tort Liability in Athletics	419	(4)
Antitrust Law and the NCAA	423	(3)
Athletic Scholarships and Related Services	426	(2)
Discrimination on Basis of Disability	428	(5)
Sex Discrimination and Title IX	433	(3)
Race Discrimination in Athletics	436	(1)
Drug Testing	437	(4)
Pay for Play in Intercollegiate Athletics	441	(8)
Town and Gown Issues
Introduction	449	(1)
Zoning	449	(8)
Statutory Reference to Uses	450	(2)
Interpretation of Ordinances	452	(1)
Exemptions and Variances	453	(1)
Spot Zoning	454	(1)
Other Challenges	455	(1)
Summary	456	(1)
Taxation	457	(5)
Educational Uses	457	(2)
Type of Property Interest	459	(1)
Proportional Exemptions	460	(2)
Summary	462	(1)
Community Access to University Property	462	(9)
Access to Public Versus Private Institutions	463	(1)
Rule-Making Concerning Access	464	(1)
Notice to Trespassers	465	(3)
Administrative Hearings	468	(1)
University Access and Commercial Speech	469	(2)
Summary	471	(1)
Environmental Protection	471	(3)
Clean Air Act	472	(1)
Clean Water Act	472	(1)
Toxic Substances Control Act	473	(1)
Radionucleotide Safety	473	(1)
Hazardous Waste Management	473	(1)
Summary	474	(1)
Conclusions	474	(5)
Index	479