The Law of Higher Education

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  • Edition: 4th
  • Format: Paperback
  • Copyright: 2007-07-20
  • Publisher: Jossey-Bass
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Based on the fourth edition of The Law of Higher Education-the indispensable guide to law that bears on the provision of higher education-this Student Edition provides an up-to-date reference and guide for coursework in higher education law. It also provides a guide for programs that help prepare higher education administrators for leadership roles. This important reference is organized into five main parts Perspectives and Foundations; The College and Its Governing Board and Staff; The College and Its Faculty; The College and Its Students; and The College and the Outside World. Each part includes the sections of the full fourth edition that most relate to student interests and are most suitable for classroom instruction, for example: ? The evolution and reach of higher education law ? The governance of higher education ? Legal planning and dispute resolution ? The interrelationships between law and policy ? The college and its employees ? Faculty employment and tenure ? Academic freedom ? Campus issues: student safety, racial and sexual harassment, affirmative action, computer networks, services for international students ? Student misconduct ? Freedom of speech, hate speech ? Student rights, responsibilities, and activities fees ? Athletics and Title IX ? Copyright

Author Biography

William A. Kaplin, J.D., is a professor of law at the Catholic University of America and Distinguished Professorial Lecturer at Stetson University College of Law. A former editor of the Journal of College and University Law, he is the coauthor of The Law of Higher Education, Fourth Edition.

Barbara A. Lee, J.D., Ph.D. is a professor of human resource management at the School of Management and Labor Relations, Rutgers University. She is the coauthor of The Law of Higher Education, Fourth Edition and Academics in Court.

Table of Contents

Notice to Instructorsp. v
Notice of Web Site and Periodic Supplements for the Student Versionp. vii
Prefacep. xvii
Crosswalk for the Student Version and The Law of Higher Education, 4th Editionp. xxv
Acknowledgmentsp. xxxiii
The Authorsp. xxxvii
General Introduction: The Study of Higher Education Lawp. 1
The Universe of Higher Education Lawp. 1
The Governance of Higher Educationp. 2
Sources of Higher Education Lawp. 3
The Legal Relationships Within Institutions of Higher Educationp. 4
The Law/Policy Distinctionp. 6
The U.S. Legal System as It Relates to Higher Education Lawp. 6
Perspectives and Foundationsp. 9
Overview of Higher Education Lawp. 11
How Far the Law Reaches and How Loud It Speaksp. 11
Evolution of Higher Education Lawp. 16
The Governance of Higher Educationp. 18
Basic concepts and distinctionsp. 18
Internal governancep. 20
External governancep. 21
Sources of Higher Education Lawp. 23
Overviewp. 23
External sources of lawp. 24
Federal and state constitutionsp. 24
Statutesp. 24
Administrative rules and regulationsp. 25
State common lawp. 26
Foreign and international lawp. 26
Internal sources of lawp. 27
Institutional rules and regulationsp. 27
Institutional contractsp. 27
Academic custom and usagep. 28
The role of case lawp. 30
Researching case lawp. 30
The Public-Private Dichotomyp. 31
Overviewp. 31
The state action doctrinep. 33
Other bases for legal rights in private institutionsp. 41
Religion and the Public-Private Dichotomyp. 43
Overviewp. 43
Religious autonomy rights of religious institutionsp. 44
Government support for religious institutionsp. 46
Religious autonomy rights of individuals in public postsecondary institutionsp. 53
The Relationship Between Law and Policyp. 55
Legal Planning and Dispute Resolutionp. 60
Legal Liabilityp. 60
Overviewp. 60
Types of liabilityp. 61
Agency lawp. 61
Enforcement mechanismsp. 62
Remedies for legal violationsp. 63
Avoiding legal liabilityp. 63
Treatment law and preventive lawp. 64
Litigation in the Courtsp. 65
Overviewp. 65
Judicial (academic) deferencep. 66
Managing litigation and the threat of litigationp. 72
Alternate Dispute Resolutionp. 73
Overviewp. 73
Types of ADRp. 74
Applications to colleges and universitiesp. 77
The College and Its Governing Board and Staffp. 81
The College's Authority and Liabilityp. 83
The Question of Authorityp. 83
Overviewp. 83
Trustee authorityp. 87
Institutional Tort Liabilityp. 87
Overviewp. 87
Negligencep. 91
Premises liabilityp. 93
Liability for injuries related to on-campus instructionp. 95
Liability for injuries in off-campus coursesp. 96
Liability for cocurricular and social activitiesp. 99
Student suicidep. 101
Liability for injuries related to outreach programsp. 103
Educational malpracticep. 104
Institutional Contract Liabilityp. 105
Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)p. 109
The College and Its Employeesp. 117
Overview of Employment Relationshipsp. 117
Employment Contractsp. 119
Defining the contractp. 119
The at-will doctrinep. 120
Collective Bargainingp. 121
Overviewp. 121
The public-private dichotomy in collective bargainingp. 121
Collective bargaining and antidiscrimination lawsp. 122
Personal Liability of Employeesp. 124
Overviewp. 124
Tort liabilityp. 125
Overviewp. 125
Negligencep. 126
Contract liabilityp. 127
Constitutional liability (personal liability under Section 1983)p. 128
Qualified immunityp. 128
Issues on the merits: State-created dangersp. 132
Employment Discriminationp. 135
Overview: The interplay of statutes, regulations, and constitutional protectionsp. 135
Sources of lawp. 137
Title VIIp. 137
Equal Pay Actp. 147
Title IXp. 148
Section 1981p. 149
Americans With Disabilities Act and Rehabilitation Act of 1973p. 150
Age Discrimination in Employment Actp. 155
Constitutional prohibitions against employment discriminationp. 157
Executive Orders 11246 and 11375p. 160
State law prohibitions on sexual orientation discriminationp. 161
Affirmative Actionp. 167
Overviewp. 167
Affirmative action under Title VIIp. 169
Affirmative action under the equal protection clausep. 173
Application of Nondiscrimination Laws to Religious Institutionsp. 177
The College and Its Facultyp. 183
Special Issues in Faculty Employmentp. 185
Overviewp. 185
Faculty Contractsp. 186
Overviewp. 186
Academic custom and usagep. 189
Part-time facultyp. 191
Contracts in religious institutionsp. 193
Faculty Collective Bargainingp. 197
Application of Nondiscrimination Laws to Faculty Employment Decisionsp. 202
Overviewp. 202
Judicial deference and remedies for tenure denialp. 202
Affirmative Action in Faculty Employment Decisionsp. 209
Standards and Criteria for Faculty Personnel Decisionsp. 213
General principlesp. 213
Terminations of tenure for causep. 215
Procedures for Faculty Employment Decisionsp. 219
General principlesp. 219
The public faculty member's right to constitutional due processp. 221
Nonrenewal of contractsp. 222
Denial of tenurep. 226
Termination of tenurep. 229
The private faculty member's procedural rightsp. 235
Faculty Academic Freedom and Freedom of Expressionp. 239
General Concepts and Principlesp. 239
Faculty freedom of expression in generalp. 239
Academic freedom: Basic concepts and distinctionsp. 247
Professional versus legal concepts of academic freedomp. 249
The foundational constitutional law casesp. 251
External versus internal restraints on academic freedomp. 255
"Institutional" academic freedomp. 258
Academic Freedom in Teachingp. 260
In generalp. 260
The classroomp. 260
Gradingp. 274
Private institutionsp. 277
Academic Freedom in Research and Publicationp. 278
Academic Freedom in Religious Colleges and Universitiesp. 287
The College and Its Studentsp. 291
The Student/Institution Relationshipp. 293
The Legal Status of Studentsp. 293
Overviewp. 293
The age of majorityp. 294
The contractual rights of studentsp. 295
Student academic freedomp. 302
Students' legal relationships with other studentsp. 312
Admissionsp. 317
Basic legal requirementsp. 317
Arbitrarinessp. 318
The contract theoryp. 319
The principle of nondiscriminationp. 321
Racep. 321
Sexp. 324
Disabilityp. 329
Immigration statusp. 335
Affirmative action programsp. 338
Readmissionp. 358
Financial Aidp. 361
General principlesp. 361
Federal programsp. 363
Nondiscriminationp. 367
Affirmative action in financial aid programsp. 369
Student Housingp. 374
Housing regulationsp. 374
Searches and seizuresp. 380
Campus Computer Networksp. 384
Freedom of speechp. 384
Liability issuesp. 390
Campus Securityp. 392
Security officersp. 392
Protecting students against violent crimep. 396
Federal statues and campus securityp. 400
Other Support Servicesp. 402
Overviewp. 402
Services for students with disabilitiesp. 403
Services for international studentsp. 404
Rights and Responsibilities of Individual Studentsp. 407
Disciplinary and Grievance Systemsp. 407
Overviewp. 407
Establishment of systemsp. 408
Codes of student conductp. 410
Judicial systemsp. 413
Disciplinary Rules and Regulationsp. 416
Overviewp. 416
Public institutionsp. 417
Private institutionsp. 418
Disciplining students with psychiatric illnessesp. 419
Grades, Credits, and Degreesp. 421
Overviewp. 421
Awarding of grades and degreesp. 422
Sexual harassment of students by faculty membersp. 429
Evaluating students with disabilitiesp. 446
Overviewp. 446
The concept of disabilityp. 447
Notice and documentation of disabilitiesp. 449
Requests for programmatic or instructional accommodationsp. 451
Procedures for Suspension, Dismissal, and Other Sanctionsp. 458
Overviewp. 458
Public institutions: Disciplinary sanctionsp. 458
Noticep. 463
Hearingp. 464
Public institutions: Academic sanctionsp. 467
Private institutionsp. 470
Student Protests and Freedom of Speechp. 475
Student free speech in generalp. 475
The "public forum" conceptp. 477
Regulation of student protestp. 482
Prior approval of protest activitiesp. 487
Posters and leafletsp. 489
Protests in the classroomp. 491
Speech Codes and the Problem of Hate Speechp. 493
Hate speech and the campusp. 493
The case law on hate speech and speech codesp. 494
Guidelines for dealing with hate speech on campusp. 501
Student Files and Recordsp. 503
Family Educational Rights and Privacy Act (FERPA)p. 503
State lawp. 507
Rights and Responsibilities of Student Organizations and Their Membersp. 513
Student Organizationsp. 513
The right to organizep. 513
The right not to join, or associate, or subsidizep. 518
Mandatory student activities feesp. 519
Principle of nondiscriminationp. 525
Religious activitiesp. 529
Fraternities and Sororitiesp. 536
Overviewp. 536
Institutional recognition and regulation of fraternal organizationsp. 536
Institutional liability for the acts of fraternal organizationsp. 542
The Student Pressp. 546
General principlesp. 546
Mandatory student fee allocations to student publicationsp. 547
Permissible scope of institutional regulationp. 549
Obscenityp. 553
Libelp. 554
Obscenity and libel in private institutionsp. 558
Athletics Teams and Clubsp. 558
General principlesp. 558
Athletes' due process rightsp. 559
Athletes' freedom of speechp. 560
Pertinent statutory lawp. 563
Athletic scholarshipsp. 564
Sex discriminationp. 568
Discrimination on the basis of disabilityp. 578
Drug testingp. 580
Tort liability for athletic injuriesp. 585
The College and the Outside Worldp. 591
The College and Governmentp. 593
Local Government Regulationp. 593
Overview of local government regulationp. 593
Trespass statutes and ordinances, and related campus regulationsp. 598
State Government Regulationp. 604
Overviewp. 604
State provision of public postsecondary educationp. 607
State chartering and licensure of private postsecondary institutionsp. 609
Federal Government Regulationp. 613
Overview of federal constitutional powers over educationp. 613
Overview of federal regulation of postsecondary educationp. 614
Regulation of intellectual properlyp. 616
Copyright lawp. 616
Federal Aid-to-Education Programsp. 622
Functions and historyp. 622
Legal structure of federal aid programsp. 623
Civil Rights Compliancep. 625
General considerationsp. 625
Title VIp. 626
Title IXp. 635
Section 504p. 637
Coverage of unintentional discriminatory actsp. 640
The College and External Private Entitiesp. 644
Education Associationsp. 644
Overview of the education associationsp. 644
Accrediting agenciesp. 646
Athletic associations and conferencesp. 648
Business Partnersp. 649
Research collaborationp. 649
The research agreementp. 652
Constitution of the United States of America: Provisions of Particular Interest to Postsecondary Educationp. 659
The American Court Systemp. 663
Reading and Analyzing Court Opinionsp. 667
Glossary of Legal Termsp. 671
Bibliographyp. 679
Statute Indexp. 689
Case Indexp. 693
Subject Indexp. 703
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