The Law of Higher Education

by Kaplin, William A.; Lee, Barbara A.

• ISBN13: 9780787970956
• ISBN10: 0787970956
• Edition: 4th
• Format: Paperback
• Copyright: 2007-07-20
• Publisher: Jossey-Bass

Summary

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 Instructors	p. v
Notice of Web Site and Periodic Supplements for the Student Version	p. vii
Preface	p. xvii
Crosswalk for the Student Version and The Law of Higher Education, 4th Edition	p. xxv
Acknowledgments	p. xxxiii
The Authors	p. xxxvii
General Introduction: The Study of Higher Education Law	p. 1
The Universe of Higher Education Law	p. 1
The Governance of Higher Education	p. 2
Sources of Higher Education Law	p. 3
The Legal Relationships Within Institutions of Higher Education	p. 4
The Law/Policy Distinction	p. 6
The U.S. Legal System as It Relates to Higher Education Law	p. 6
Perspectives and Foundations	p. 9
Overview of Higher Education Law	p. 11
How Far the Law Reaches and How Loud It Speaks	p. 11
Evolution of Higher Education Law	p. 16
The Governance of Higher Education	p. 18
Basic concepts and distinctions	p. 18
Internal governance	p. 20
External governance	p. 21
Sources of Higher Education Law	p. 23
Overview	p. 23
External sources of law	p. 24
Federal and state constitutions	p. 24
Statutes	p. 24
Administrative rules and regulations	p. 25
State common law	p. 26
Foreign and international law	p. 26
Internal sources of law	p. 27
Institutional rules and regulations	p. 27
Institutional contracts	p. 27
Academic custom and usage	p. 28
The role of case law	p. 30
Researching case law	p. 30
The Public-Private Dichotomy	p. 31
Overview	p. 31
The state action doctrine	p. 33
Other bases for legal rights in private institutions	p. 41
Religion and the Public-Private Dichotomy	p. 43
Overview	p. 43
Religious autonomy rights of religious institutions	p. 44
Government support for religious institutions	p. 46
Religious autonomy rights of individuals in public postsecondary institutions	p. 53
The Relationship Between Law and Policy	p. 55
Legal Planning and Dispute Resolution	p. 60
Legal Liability	p. 60
Overview	p. 60
Types of liability	p. 61
Agency law	p. 61
Enforcement mechanisms	p. 62
Remedies for legal violations	p. 63
Avoiding legal liability	p. 63
Treatment law and preventive law	p. 64
Litigation in the Courts	p. 65
Overview	p. 65
Judicial (academic) deference	p. 66
Managing litigation and the threat of litigation	p. 72
Alternate Dispute Resolution	p. 73
Overview	p. 73
Types of ADR	p. 74
Applications to colleges and universities	p. 77
The College and Its Governing Board and Staff	p. 81
The College's Authority and Liability	p. 83
The Question of Authority	p. 83
Overview	p. 83
Trustee authority	p. 87
Institutional Tort Liability	p. 87
Overview	p. 87
Negligence	p. 91
Premises liability	p. 93
Liability for injuries related to on-campus instruction	p. 95
Liability for injuries in off-campus courses	p. 96
Liability for cocurricular and social activities	p. 99
Student suicide	p. 101
Liability for injuries related to outreach programs	p. 103
Educational malpractice	p. 104
Institutional Contract Liability	p. 105
Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)	p. 109
The College and Its Employees	p. 117
Overview of Employment Relationships	p. 117
Employment Contracts	p. 119
Defining the contract	p. 119
The at-will doctrine	p. 120
Collective Bargaining	p. 121
Overview	p. 121
The public-private dichotomy in collective bargaining	p. 121
Collective bargaining and antidiscrimination laws	p. 122
Personal Liability of Employees	p. 124
Overview	p. 124
Tort liability	p. 125
Overview	p. 125
Negligence	p. 126
Contract liability	p. 127
Constitutional liability (personal liability under Section 1983)	p. 128
Qualified immunity	p. 128
Issues on the merits: State-created dangers	p. 132
Employment Discrimination	p. 135
Overview: The interplay of statutes, regulations, and constitutional protections	p. 135
Sources of law	p. 137
Title VII	p. 137
Equal Pay Act	p. 147
Title IX	p. 148
Section 1981	p. 149
Americans With Disabilities Act and Rehabilitation Act of 1973	p. 150
Age Discrimination in Employment Act	p. 155
Constitutional prohibitions against employment discrimination	p. 157
Executive Orders 11246 and 11375	p. 160
State law prohibitions on sexual orientation discrimination	p. 161
Affirmative Action	p. 167
Overview	p. 167
Affirmative action under Title VII	p. 169
Affirmative action under the equal protection clause	p. 173
Application of Nondiscrimination Laws to Religious Institutions	p. 177
The College and Its Faculty	p. 183
Special Issues in Faculty Employment	p. 185
Overview	p. 185
Faculty Contracts	p. 186
Overview	p. 186
Academic custom and usage	p. 189
Part-time faculty	p. 191
Contracts in religious institutions	p. 193
Faculty Collective Bargaining	p. 197
Application of Nondiscrimination Laws to Faculty Employment Decisions	p. 202
Overview	p. 202
Judicial deference and remedies for tenure denial	p. 202
Affirmative Action in Faculty Employment Decisions	p. 209
Standards and Criteria for Faculty Personnel Decisions	p. 213
General principles	p. 213
Terminations of tenure for cause	p. 215
Procedures for Faculty Employment Decisions	p. 219
General principles	p. 219
The public faculty member's right to constitutional due process	p. 221
Nonrenewal of contracts	p. 222
Denial of tenure	p. 226
Termination of tenure	p. 229
The private faculty member's procedural rights	p. 235
Faculty Academic Freedom and Freedom of Expression	p. 239
General Concepts and Principles	p. 239
Faculty freedom of expression in general	p. 239
Academic freedom: Basic concepts and distinctions	p. 247
Professional versus legal concepts of academic freedom	p. 249
The foundational constitutional law cases	p. 251
External versus internal restraints on academic freedom	p. 255
"Institutional" academic freedom	p. 258
Academic Freedom in Teaching	p. 260
In general	p. 260
The classroom	p. 260
Grading	p. 274
Private institutions	p. 277
Academic Freedom in Research and Publication	p. 278
Academic Freedom in Religious Colleges and Universities	p. 287
The College and Its Students	p. 291
The Student/Institution Relationship	p. 293
The Legal Status of Students	p. 293
Overview	p. 293
The age of majority	p. 294
The contractual rights of students	p. 295
Student academic freedom	p. 302
Students' legal relationships with other students	p. 312
Admissions	p. 317
Basic legal requirements	p. 317
Arbitrariness	p. 318
The contract theory	p. 319
The principle of nondiscrimination	p. 321
Race	p. 321
Sex	p. 324
Disability	p. 329
Immigration status	p. 335
Affirmative action programs	p. 338
Readmission	p. 358
Financial Aid	p. 361
General principles	p. 361
Federal programs	p. 363
Nondiscrimination	p. 367
Affirmative action in financial aid programs	p. 369
Student Housing	p. 374
Housing regulations	p. 374
Searches and seizures	p. 380
Campus Computer Networks	p. 384
Freedom of speech	p. 384
Liability issues	p. 390
Campus Security	p. 392
Security officers	p. 392
Protecting students against violent crime	p. 396
Federal statues and campus security	p. 400
Other Support Services	p. 402
Overview	p. 402
Services for students with disabilities	p. 403
Services for international students	p. 404
Rights and Responsibilities of Individual Students	p. 407
Disciplinary and Grievance Systems	p. 407
Overview	p. 407
Establishment of systems	p. 408
Codes of student conduct	p. 410
Judicial systems	p. 413
Disciplinary Rules and Regulations	p. 416
Overview	p. 416
Public institutions	p. 417
Private institutions	p. 418
Disciplining students with psychiatric illnesses	p. 419
Grades, Credits, and Degrees	p. 421
Overview	p. 421
Awarding of grades and degrees	p. 422
Sexual harassment of students by faculty members	p. 429
Evaluating students with disabilities	p. 446
Overview	p. 446
The concept of disability	p. 447
Notice and documentation of disabilities	p. 449
Requests for programmatic or instructional accommodations	p. 451
Procedures for Suspension, Dismissal, and Other Sanctions	p. 458
Overview	p. 458
Public institutions: Disciplinary sanctions	p. 458
Notice	p. 463
Hearing	p. 464
Public institutions: Academic sanctions	p. 467
Private institutions	p. 470
Student Protests and Freedom of Speech	p. 475
Student free speech in general	p. 475
The "public forum" concept	p. 477
Regulation of student protest	p. 482
Prior approval of protest activities	p. 487
Posters and leaflets	p. 489
Protests in the classroom	p. 491
Speech Codes and the Problem of Hate Speech	p. 493
Hate speech and the campus	p. 493
The case law on hate speech and speech codes	p. 494
Guidelines for dealing with hate speech on campus	p. 501
Student Files and Records	p. 503
Family Educational Rights and Privacy Act (FERPA)	p. 503
State law	p. 507
Rights and Responsibilities of Student Organizations and Their Members	p. 513
Student Organizations	p. 513
The right to organize	p. 513
The right not to join, or associate, or subsidize	p. 518
Mandatory student activities fees	p. 519
Principle of nondiscrimination	p. 525
Religious activities	p. 529
Fraternities and Sororities	p. 536
Overview	p. 536
Institutional recognition and regulation of fraternal organizations	p. 536
Institutional liability for the acts of fraternal organizations	p. 542
The Student Press	p. 546
General principles	p. 546
Mandatory student fee allocations to student publications	p. 547
Permissible scope of institutional regulation	p. 549
Obscenity	p. 553
Libel	p. 554
Obscenity and libel in private institutions	p. 558
Athletics Teams and Clubs	p. 558
General principles	p. 558
Athletes' due process rights	p. 559
Athletes' freedom of speech	p. 560
Pertinent statutory law	p. 563
Athletic scholarships	p. 564
Sex discrimination	p. 568
Discrimination on the basis of disability	p. 578
Drug testing	p. 580
Tort liability for athletic injuries	p. 585
The College and the Outside World	p. 591
The College and Government	p. 593
Local Government Regulation	p. 593
Overview of local government regulation	p. 593
Trespass statutes and ordinances, and related campus regulations	p. 598
State Government Regulation	p. 604
Overview	p. 604
State provision of public postsecondary education	p. 607
State chartering and licensure of private postsecondary institutions	p. 609
Federal Government Regulation	p. 613
Overview of federal constitutional powers over education	p. 613
Overview of federal regulation of postsecondary education	p. 614
Regulation of intellectual properly	p. 616
Copyright law	p. 616
Federal Aid-to-Education Programs	p. 622
Functions and history	p. 622
Legal structure of federal aid programs	p. 623
Civil Rights Compliance	p. 625
General considerations	p. 625
Title VI	p. 626
Title IX	p. 635
Section 504	p. 637
Coverage of unintentional discriminatory acts	p. 640
The College and External Private Entities	p. 644
Education Associations	p. 644
Overview of the education associations	p. 644
Accrediting agencies	p. 646
Athletic associations and conferences	p. 648
Business Partners	p. 649
Research collaboration	p. 649
The research agreement	p. 652
Appendices
Constitution of the United States of America: Provisions of Particular Interest to Postsecondary Education	p. 659
The American Court System	p. 663
Reading and Analyzing Court Opinions	p. 667
Glossary of Legal Terms	p. 671
Bibliography	p. 679
Statute Index	p. 689
Case Index	p. 693
Subject Index	p. 703
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