The Law of Higher Education: Student Version

Notice to Instructors Notice of Website and Periodic Supplements Preface Crosswalk for the Student Version and The Law of Higher Education, 5th Edition Acknowledgements The Authors General Introduction: The Study of Higher Education Law 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 U.S. Legal System as It Relates to Higher Education Law Part One: Perspectives and Foundations 1 Overview of Higher Education Law 1.1 How Far the Law Reaches and How Loudly It Speaks 1.2 Evolution of Higher Education Law 1.3 The Governance of Higher Education 1.3.1 Basic concepts and distinctions 1.3.2 Internal governance 1.3.3 External governance 1.4 Sources of Higher Education Law 1.4.1 Overview 1.4.2 External sources of law 1.4.2.1 Federal and state constitutions 1.4.2.2 Statutes 1.4.2.3 Administrative rules and regulations 1.4.2.4 State common law 1.4.2.5 Foreign and international law 1.4.3 Internal sources of law 1.4.3.1 Institutional rules and regulations 1.4.3.2 Institutional contracts 1.4.3.3 Academic custom and usage 1.4.4 The role of case law 1.4.5 Researching case law 1.5 The Public-Private Dichotomy 1.5.1 Overview 1.5.2 The state action doctrine 1.5.2.1 When private postsecondary institutions may be engaged in state action 1.5.2.2 When students, employees, and others may be engaged in state action 1.5.3 Other bases for legal rights in private institutions 1.6 Religion and the Public-Private Dichotomy 1.6.1 Overview 1.6.2 Religious autonomy rights of institutions and their personnel 1.6.3 Governmental support for religious institutions and their students and faculty members 1.6.4 Religious autonomy rights of individuals in public postsecondary institutions 1.7 The Relationship Between Law and Policy 2: Legal Planning and Dispute Resolution 2.1 Legal Liability 2.1.1 Overview 2.1.2 Types of liability 2.1.3 Agency law 2.1.4 Enforcement mechanisms 2.1.5 Remedies for legal violations 2.1.6 Avoiding legal liability 2.1.7 Treatment law and preventive law 2.2 Litigation in the Courts 2.2.1 Overview 2.2.2 Judicial (academic) deference 2.2.3 Managing litigation and the threat of litigation 2.3 Alternative Dispute Resolution 2.3.1 Overview 2.3.2 Types of ADR 2.3.3 Applications to colleges and universities 2.4 Institutional Management of Liability Risk 2.4.1 Overview and suggestions 2.4.2 Risk management strategies 2.4.3 Enterprise risk management Part Two: The College and Its Governing Board and Staff 3: The College's Authority and Liability 3.1 The Question of Authority 3.1.1 Overview 3.1.2 Trustee Authority 3.2 Institutional Tort Liability 3.2.1 Overview 3.2.2 Negligence 3.2.2.1 Overview 3.2.2.2 Premises liability 3.2.2.3 Liability for injuries related to on-campus instruction 3.2.2.4 Liability for injuries in off-campus courses 3.2.2.5 Liability for co-curricular and social activities 3.2.2.6 Student suicide 3.2.3 Educational Malpractice 3.2.4 Defamation 3.3 Institutional Contract Liability 3.4 Institutional Liability for Violations of Federal Constitutional Rights (Section 1983 Liability) 3.4.1 Overview 4: The College and its Employees 4.1 Overview of Employment Relationships 4.2 Employment Contracts 4.2.1 Defining the contract 4.2.2 The at-will doctrine 4.3 Collective Bargaining 4.3.1 Overview 4.3.2 The public-private dichotomy in collective bargaining 4.3.3 Collective bargaining and antidiscrimination laws 4.4 Personal Liability of Employees 4.4.1 Overview 4.4.2 Tort liability 4.4.2.1 Overview 4.4.2.2 Negligence 4.4.2.3 Defamation 4.4.3 Contract liability 4.4.4 Constitutional liability (personal liability under Section 1983) 4.4.4.1 Qualified immunity 4.4.4.2 Issues on the merits: State created dangers 4.5 Employment Discrimination 4.5.1 Overview: The interplay of statutes, regulations, and constitutional protections 4.5.2 Sources of law 4.5.2.1 Title VII 4.5.2.2 Equal Pay Act 4.5.2.3 Title IX 4.5.2.4 Section 1981 4.5.2.5 Americans with Disabilities Act and Rehabilitation Act of 1973 4.5.2.6 Age Discrimination in Employment Act 4.5.2.7 Constitutional prohibitions against employment discrimination 4.5.2.8 Executive Orders 11246 and 11375 4.5.2.9 Laws prohibiting sexual orientation discrimination 4.5.2.10 Laws prohibiting transgender discrimination 4.6 Affirmative Action in Employment 4.6.1 Overview 4.6.2 Affirmative action under Title VII 4.6.3 Affirmative action under the Equal Protection Clause 4.6.4 State regulation of affirmative action 4.6.5 Conclusions 4.7 Application of Nondiscrimination Laws to Religious Institutions Part Three: The College and Its Faculty 5: Special Issues in Faculty Employment 5.1 Overview 5.2 Faculty Contracts 5.2.1 Overview 5.2.2 Academic custom and usage 5.2.3 Part-time faculty 5.2.4 Contracts in religious institutions 5.3 Faculty Collective Bargaining 5.4 Application of Nondiscrimination Laws to Faculty Employment Decisions 5.4.1 Overview 5.4.2 Judicial deference and remedies for tenure denial 5.5 Affirmative Action in Faculty Employment Decisions 5.6 Standards and Criteria for Faculty Employment Decisions 5.6.1 General principles 5.6.2 Termination of tenure for cause 5.6.3 Denial of tenure 5.7 Procedures for Faculty Employment Decisions 5.7.1 General principles 5.7.2 The public faculty member's right to constitutional due process 5.7.2.1 Overview 5.7.2.2 Nonrenewal of contracts 5.7.2.3 Denial of tenure 5.7.2.4 Termination of tenure 5.7.3 The private faculty member's procedural rights 6: Faculty Academic Freedom and Freedom of Expression 6.1 General Concepts and Principles 6.1.1 Faculty freedom of expression in general 6.1.2 Other constitutional rights supporting faculty freedom of expression 6.1.3 Academic freedom: basic concepts and distinctions 6.1.4 Professional versus legal versions of academic freedom 6.1.5 The foundational constitutional law cases 6.1.6 External vs. internal restraints on academic freedom 6.1.7 "Institutional" academic freedom 6.1.8 "International" academic freedom 6.2 Academic Freedom in Teaching 6.2.1 In general 6.2.2 The classroom 6.2.3 Grading 6.2.4 Private institutions 6.3 Academic Freedom in Research and Publication 6.4 Academic Freedom in ReligiousColleges and Universities Part Four: The College and Its Students 7: The Student/Institution Relationship 7.1 The Legal Status of Students 7.1.1 Overview 7.1.2 The age of majority 7.1.3 The contractual rights of students 7.1.4 Student academic freedom 7.1.5 Students' legal relationships with other students 7.2 Admissions 7.2.1 Basic legal requirements 7.2.2 Arbitrariness 7.2.3 The contract theory 7.2.4 The principle of nondiscrimination 7.2.4.1 Race 7.2.4.2 Sex 7.2.4.3 Disability 7.2.4.4 Age 7.2.4.5 Immigration status 7.2.5 Affirmative action programs 7.2.6 Readmission 7.3 Financial Aid 7.3.1 General principles 7.3.2 Federal programs 7.3.3 Nondiscrimination 7.3.4 Affirmative action in financial aid programs 7.3.5 Discrimination against noncitizens 7.3.5.1 Documented (immigrant and nonimmigrant) noncitizens 7.3.5.2 Undocumented noncitizens 7.4 Student Housing 7.4.1 Overview 7.4.2 Discrimination claims 7.4.3 Searches and seizures 7.5 Campus Computer Networks 7.5.1 Freedom of Speech 7.5.2 Right to Privacy 7.5.3 Liability issues 7.6 Campus Security 7.6.1 Security officers 7.6.2 Protecting students against violent crime 7.6.3 Federal statutes and campus security 7.7 Other Support Services 7.7.1 Overview 7.7.2 Services for students with disabilities 7.7.3 Services for international students 7.8 Student Files and Records 7.8.1 Family Educational Rights and Privacy Act (FERPA) 7.8.2 State law 8: Student Academic Issues 8.1 Overview 8.2 Grading and Academic Standards 8.3 Online Programs 8.3.1 Overview 8.3.2 Student legal claims about online programs 8.4 Academic Accommodations for Students with Disabilities 8.4.1 Overview 8.4.2 Requests for programmatic or other accommodations 8.4.2.1 Domestic programs 8.4.2.2 Study abroad programs 8.4.2.3 Online programs 8.5 Sexual Harassment of Students by Faculty Members 8.6 Academic Dismissals and Other Sanctions 8.6.1 Overview 8.6.2 Contract issues 8.6.3 Constitutional issues 8.6.4 Discrimination issues 8.6.5 Procedures for Academic Sanctions 8.6.5.1 Public institutions 8.6.5.2 Private institutions 9: Student Disciplinary Issues 9.1 Disciplinary and Grievance Systems 9.1.1 Overview 9.1.2 Establishment of systems 9.1.3 Codes of student conduct 9.1.4 Judicial systems 9.2 Disciplinary Rules and Regulations 9.2.1 Overview 9.2.2 Public institutions 9.2.3 Private institutions 9.2.4 Disciplining students with mental disorders 9.3 Procedures for Suspension, Dismissal, and Other Sanctions 9.3.1 Overview 9.3.2 Public institutions: Disciplinary sanctions 9.3.2.1 Overview 9.3.2.2 Notice 9.3.2.3 Hearing 9.3.3 Private institutions 9.4 Student Protests and Freedom of Speech 9.4.1 Student free speech in general 9.4.2 The "public forum" concept 9.4.3 Regulation of student protest 9.4.4 Prior approval of protest activities 9.4.5 Posters and leaflets 9.4.6 Protests in the classroom 9.5 Speech Codes and the Problem of Hate Speech 9.5.1 Hate speech and the campus 9.5.2 The case law on hate speech and speech codes 9.5.3 Guidelines for dealing with hate speech on campus 10: Rights and Responsibilities of Student Organizations and Their Members 10.1 Student Organizations 10.1.1 The right to organize 10.1.2 Right not to join, or associate, or subsidize 10.1.3 Mandatory student activities fees 10.1.4 Principle of nondiscrimination 10.1.5 Religious activities 10.2 Fraternities and Sororities 10.2.1 Overview 10.2.2 Institutional recognition and regulation of fraternal organizations 10.2.3 Institutional liability for the acts of fraternal organizations 10.3 The Student Press 10.3.1 General principles 10.3.2 Mandatory student fee allocations to student publications 10.3.3 Permissible scope of institutional regulation 10.3.4 Advertising in student publications 10.3.5 Obscenity 10.3.6 Libel 10.3.7 Obscenity and libel in private institutions 10.4 Athletics Teams and Clubs 10.4.1 General principles 10.4.2 Athletes' due process rights 10.4.3 Athletes' freedom of speech 10.4.4 Pertinent statutory law 10.4.5 Athletic scholarships 10.4.6 Sex discrimination 10.4.7 Discrimination on the basis of disability 10.4.8 Drug testing 10.4.9 Tort liability for athletic injuries Part Five: The College and the Outside World 11: The College and Government 11.1 Local Government Regulation 11.1.1 Overview of local government regulation 11.1.2 Trespass statutes and ordinances, and related campus regulations 11.1.3 Relations with local police 11.2 State Government Regulation 11.2.1 Overview 11.2.2 State provision of public postsecondary education 11.2.3 State chartering and licensure of private postsecondary institutions 11.2.4 Other State Regulatory Laws Affecting Postsecondary Education Programs 11.2.4.1 Laws on gun possession on campus 11.3 Federal Government Regulation 11.3.1 Overview of federal constitutional powers over education 11.3.2 Federal regulation of postsecondary education 11.3.2.1 Overview 11.3.2.2 Regulation of research 11.3.2.3 Regulation of intellectual property 11.4 Federal Aid-to-Education Programs 11.4.1 Functions and history 11.4.2 Legal structure of federal aid programs 11.5 Civil Rights Compliance 11.5.1 General considerations 11.5.2 Title VI 11.5.3 Title IX 11.5.3.1 Overview 11.5.3.2 Title IX and peer sexual harassment 11.5.3.3 Claims by accusing students 11.5.3.4 Claims by accused students 11.5.4 Section 504 11.5.5 Coverage of unintentional discrimination 12: The College and External Private Entities 12.1 Education Associations 12.1.1 Overview of the education associations 12.1.2 Accrediting agencies 12.1.3 Athletic associations and conferences 12.2 Business Partners 12.2.1 Research collaboration 12.2.2 The research agreement Appendices A. Constitution of the United States of America: Provisions of Particular Interest to PostsecondaryEducation B. The American Court System C. Reading and Analyzing Court Opinions D. Glossary of Legal Terms Bibliography Statute Index Case Index Subject Index