Law of Higher Education / Edition 4

Law of Higher Education / Edition 4

by Barbara A. Lee
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Pub. Date:
Wiley, John & Sons, Incorporated


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Law of Higher Education / Edition 4

This fourth edition of the indispensable guide to the laws that bear on the conduct of higher education provides a revised and up-to-date reference, research source, and guide for administrators, attorneys, and researchers. The book is also widely used as a text for graduate courses on higher education law in programs preparing higher education administrators for leadership roles.

This new edition includes new and expanded sections on laws related to:

* religious issues

* alternative dispute resolution

* the college and its employees

* collective bargaining at religious and private colleges

* whistleblower and other employee protections

* personal liability of employees

* nondiscrimination and affirmative action in employment

* campus technology and computer networks

* disabilities

* student academic freedom

* freedom of speech and hate speech

* student organizations' rights, responsibilities, and activities fees

* athletes' rights

* USA patriot act and immigration status

* public institutions and zoning regulations

* regulation of research

* coverage of retaliatory and extraterritorial acts

* federal civil rights statues

Product Details

ISBN-13: 9780787986568
Publisher: Wiley, John & Sons, Incorporated
Publication date: 08/18/2006
Edition description: REV
Pages: 960
Product dimensions: 7.28(w) x 10.04(h) x 1.73(d)

About the Author

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

1. Overview of Higher Education Law.
1.1 How Far the Law Reaches and How Loud It Speaks.
1.2 Evolution of Higher Education Law.
1.3 The Governance of Higher Education.
1.4 Sources of Higher Education Law.
1.4.1 Overview.
1.4.2 Academic custom and usage.
1.4.3 Foreign and international law.
1.4.4 External sources of law (on website). Federal and state constitutions. Statutes. Administrative rules and regulations. State common law.
1.4.5 Internal sources of law (on website). Institutional rules and regulations. Institutional contracts.
1.4.6 The role of case law (on website).
1.5 The Public-Private Dichotomy.
1.5.1 Overview.
1.5.2 The state action doctrine.
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 individuals.
1.6.3 Governmental support for religiously-affiliated institutions.
1.7 The Distinction Between Law and Policy.
Selected Annotated Bibliography.
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.
2.2 Litigation in the Courts.
2.2.1 Overview.
2.2.2 Judicial (academic) deference.
2.2.3 Managing litigation and the threat of litigation.
2.2.4 Access to court (on website). Jurisdiction. Other technical doctrines. Statutes of limitations. Exhaustion of remedies.
2.2.5 Pretrial and trial issues (on website). Class action suits. Pretrial discovery. Issues regarding evidence. Ethical issues. Summary judgments and motions to dismiss. Standards of judicial review and burdens of proof. Final judgments.
2.2.6 Judicial remedies. Money damages. Injunctions. Attorney's fees. Contempt of court.
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 Legal Services.
2.4.1 Organizational arrangements for delivery of legal services.
2.4.2 Treatment law and preventive law.
2.4.2 Ethical issues.
2.5 Institutional Management of Liability Risk.
2.5.1 Overview and suggestions.
2.5.2 Risk avoidance and risk control.
2.5.3 Risk transfer. Insurance. Hold-harmless and indemnification agreements. Releases and waivers.
2.5.4 Risk retention.
2.5.5 Legal limits on authority to transfer risk.
Selected Annotated Bibliography.
3. The College and Its Trustees and Officers.
3.1 The Question of Authority.
3.2 Sources and Scope of Authority and Liability.
3.2.1 Trustees. Overview. Trustees of Public Colleges. Trustees of Private Colleges.
3.2.2 Other officers and administrators.
3.2.3 Campus Organizations.
3.2.4 Trustee Liability.
3.3 Institutional Tort Liability.
3.3.1 Overview.
3.3.2 Negligence. Premises liability. Liability for injuries related to on-campus instruction. Liability for injuries in off-campus courses. Liability for co-curricular and social activities. Student suicide. Liability for injuries related to outreach programs.
3.3.3 Educational Malpractice.
3.3.4 Defamation.
3.3.5 Other Sources of Tort Liability.
3.4 Institutional Contract Liability.
3.5 Institutional Liability for Violations of Federal Constitutional Rights.
3.6 Captive and Affiliated Organizations.
3.6.1 Overview.
3.6.2 Structural problems.
3.6.3 Taxation issues.
3.6.4 Application of regulatory laws.
3.6.5 'State action' issues.
3.6.6 Liability issues.
Selected Annotated Bibliography.
4. The College and its Employees.
4.1 Overview of Employment Relationships.
4.2 Defining the Employment Relationship.
4.2.1 Employees versus independent contractors.
4.2.2 Where is the workplace?.
4.3 Employment Contracts.
4.3.1 Defining the contract.
4.3.2 The at-will doctrine.
4.3.3 Source, scope, and terms of the contract. Sources of the contract. Contract interpretation. Employee handbooks as contracts. Other contract claims. Contract rescission. Drug testing and medical screening. Executive contracts.
4.3.4 Amendment of the contract.
4.3.5 Waiver of contract rights.
4.3.6 Legal planning with contracts.
4.4 Civil Service Rules.
4.5 Collective Bargaining.
4.5.1 Overview.
4.5.2 The public-private dichotomy in collective bargaining. Bargaining at private colleges. Collective bargaining in religiously-affiliated institutions. Bargaining at public colleges.
4.5.3 Organization, recognition and certification.
4.5.4 Bargainable subjects.
4.5.5 Collective bargaining and antidiscrimination laws.
4.5.6 Students and collective bargaining.
4.6 Other employee protections.
4.6.1 OSHA.
4.6.2 Fair Labor Standards Act.
4.6.3 Employee Retirement Income Security Act.
4.6.4 Family and Medical Leave Act.
4.6.5 Immigration laws.
4.6.6 Workers compensation laws.
4.6.7 Unemployment compensation laws.
4.6.8 Whistleblower protections.
4.6.9 Uniformed Services Employment and Reemployment Rights Act.
4.7 Personal Liability of Employees.
4.7.1 Overview.
4.7.2 Tort liability. Overview. Negligence. Defamation. Other tort claims.
4.7.3 Contract liability.
4.7.4 Constitutional liability (personal liability under Section 1983). Qualified immunity. Issues on the merits: State created dangers.
4.8 Performance Management Issues.
4.8.1 Pre-hire issues.
4.8.2 Evaluation.
4.8.3 Discipline.
4.8.4 Promotion.
4.8.5 Termination.
Selected Annotated Bibliography.
5. Nondiscrimination and Affirmative Action in Employment.
5.1 The Interplay of Statutes, Regulations, and Constitutional Protections.
5.2 Sources of Law.
5.2.1 Title VII.
5.2.2 Equal Pay Act.
5.2.3 Title IX.
5.2.4 Section 1981.
5.2.5 Americans with Disabilities Act and Rehabilitation Act of 1973.
5.2.6 Age Discrimination in Employment Act.
5.2.7 Constitutional prohibitions against employment discrimination.
5.2.8 Executive Orders 11246 and 11375.
5.3 The Protected Classes.
5.3.1 Race.
5.3.2 National origin and alienage.
5.3.3 Sex. Overview. Pregnancy and health benefits discrimination. Sexual harassment. Application to athletics coaches.
5.3.4 Disability.
5.3.5 Age.
5.3.6 Religion.
5.3.7 Sexual orientation.
5.4 Affirmative Action.
5.4.1 Affirmative action under Title VII.
5.4.2 Affirmative action under the Equal Protection Clause.
5.4.3 State regulation of affirmative action.
5.5 Application of Nondiscrimination Laws to Religiously-Affiliated Institutions.
Selected Annotated Bibliography.
6. Faculty Employment Issues.
6.1 Overview.
6.2 Faculty Contracts.
6.2.1 Overview.
6.2.2 Statutory versus contract rights in public institutions.
6.2.3 Academic custom and usage.
6.2.4 Part-time faculty.
6.2.5 Contracts in religious institutions.
6.3 Faculty Collective Bargaining.
6.3.1 Bargaining unit eligibility of faculty.
6.3.2 Co-existence of collective bargaining and traditional academic practices.
6.4 Application of Nondiscrimination Laws to Faculty Employment Decisions.
6.4.1 Overview.
6.4.2 Judicial deference and remedies for tenure denial.
6.4.3 Challenges to employment decisions.. Race and national origin discrimination claims. Sex discrimination. Disability discrimination. Age discrimination.
6.4.4 Challenges to salary decisions.
6.4.5 Other workplace issues.
6.5 Affirmative Action in Faculty Employment Decisions.
6.6 Standards and Criteria for Faculty Employment Decisions.
6.6.1 General principles.
6.6.2 Termination of tenure for cause.
6.6.3 Denial of tenure.
6.6.4 Post-tenure review.
6.7 Procedures for Faculty Employment Decisions.
6.7.1 General principles.
6.7.2 The public faculty member's right to constitutional due process. Nonrenewal of contracts. Denial of tenure. Termination of tenure. Other personnel decisions.
6.7.3 The private faculty member's procedural rights.
6.7.4 Implementing procedural requirements.
6.8 Closure, Merger, and Reduction in Force.
6.8.1 Overview.
6.8.2 Contractual considerations.
6.8.3 Constitutional considerations.
6.8.4 Statutory considerations.
6.8.5 Preparing for closures, mergers, and reductions in force.
Selected Annotated Bibliography.
7. Faculty Academic Freedom and Freedom of Expression.
7.1 General Concepts and Principles.
7.1.1 Faculty freedom of expression in general.
7.1.2 Academic freedom: basic concepts and distinctions.
7.1.3 Professional versus legal versions of academic freedom.
7.1.4 The foundational constitutional law cases.
7.1.5 External vs. internal restraints on academic freedom.
7.1.6 'Institutional' academic freedom.
7.2 Academic Freedom in Teaching.
7.2.1 In general.
7.2.2 The classroom.
7.2.3 Grading.
7.2.4 Methods of analyzing academic freedom in teaching claims.
7.2.5 Private institutions.
7.3 Academic Freedom in Research and Publication.
7.4 Academic Freedom in Institutional Affairs.
7.4.1 In general.
7.4.2 Speech on governance matters.
7.4.3 Intramural speech on extramural public affairs.
7.5 Academic Freedom in Private Life.
7.5.1 In general.
7.5.2 Extramural speech.
7.6 Administrators' Authority Regarding Faculty Academic Freedom and Freedom of Expression.
7.7 Protection of Confidential Academic Information: the 'Academic Freedom Privilege'.
7.7.1 Personnel issues.
7.7.2 Research findings.
7.8 Academic Freedom in Religious Colleges and Universities.
Selected Annotated Bibliography.
8. The Student/Institution Relationship.
8.1 The Legal Status of Students.
8.1.1 Overview.
8.1.2 The age of majority.
8.1.3 The contractual rights of students.
8.1.4 Student academic freedom.
8.1.5 Students' legal relationships with other students.
8.2 Admissions.
8.2.1 Basic legal requirements.
8.2.2 Arbitrariness.
8.2.3 The contract theory.
8.2.4 The principle of nondiscrimination. Race. Sex. Disability. Age. Residence. Immigration status.
8.2.5 Affirmative action programs.
8.2.6 Readmission.
8.3 Financial Aid.
8.3.1 General principles.
8.3.2 Federal programs.
8.3.3 Nondiscrimination.
8.3.4 Affirmative action in financial aid programs.
8.3.5 Discrimination against nonresidents.
8.3.6 Discrimination against aliens. Documented (immigrant and nonimmigrant) aliens. Undocumented aliens.
8.3.7 Using government student aid funds at religiously affiliated institutions.
8.3.8 Collection of student debts. Federal bankruptcy law. Withholding certified transcripts.
8.3.3 Debt collection requirements in federal student loan programs.
8.4 Student Housing.
8.4.1 Housing regulations.
8.4.2 Searches and seizures.
8.5 Campus Computer Networks.
8.5.1 Liability issues.
8.5.2 Freedom of Speech.
8.6 Campus Security.
8.6.1 Security officers.
8.6.2 Protecting students against violent crime.
8.6.3 Federal statues and campus security.
8.7 Other Support Services.
8.7.1 Overview.
8.7.2 Health services.
8.7.3 Services for students with disabilities.
8.7.4 Services for international students.
8.7.5 Child care services.
8.7.6 Legal services.
Selected Annotated Bibliography.
9. Rights and Responsibilities of Individual Students.
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 psychiatric illnesses.
9.3 Grades, Credits, and Degrees.
9.3.1 Overview.
9.3.2 Awarding of grades and degrees.
9.3.3 Degree revocation.
9.3.4 Sexual harassment by faculty.
9.3.5 Evaluating students with disabilities. Overview. The concept of disability. Notice and documentation of disabilities. Requests for programmatic or institutional accommodations.
9.4 Procedures for Suspension, Dismissal, and Other Sanctions.
9.4.1 Overview.
9.4.2 Public institutions: Disciplinary sanctions. Notice. Hearing.
9.4.3 Public institutions: Academic sanctions.
9.4.4 Private institutions.
9.5 Student Protests and Freedom of Speech.
9.5.1 Student free speech in general.
9.5.2 The 'public forum' concept.
9.5.3 Regulation of student protest.
9.5.4 Prior approval of protest activities.
9.5.5 Court injunctions and criminal prosecutions.
9.5.6 Posters and leaflets.
9.5.7 Protests in the classroom.
9.6 The Special Problem of Hate Speech.
9.6.1 Hate speech and the campus.
9.6.2. The case law on hate speech and speech codes.
9.6.3. Guidelines for dealing with hate speech on campus.
9.7 Student Files and Records.
9.7.1 FERPA.
9.7.2 State law.
9.7.3 The Federal Privacy Act.
Selected Annotated Bibliography.
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.
10.2.4 Liabilities of fraternal organizations and their members.
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.
Selected Annotated Bibliography.
11. Local Governments and the Local Community.
11.1 General Principles.
11.2 Zoning and Land Use Regulation.
11.2.1 Overview.
11.2.2 Public institutions and zoning regulations.
11.2.3 Private institutions and zoning regulations.
11.2.4 Special exceptions and variances.
11.2.5 Amendment of zoning ordinances.
11.2.6 Rights of other property owners.
11.2.7 Zoning off-campus housing.
11.3 Local Government Taxation.
11.3.1 General tax concepts.
11.3.2 Property taxes.
11.3.3 Sales, admission, and amusement taxes.
11.4 Student Voting in the Community.
11.4.1 Registering to vote.
11.4.2 Scheduling elections.
11.4.3 Canvassing and registration on campus.
11.4.4 Reapportionment.
11.5 Relations with Local Police.
11.6 Community Access to the College's Campus.
11.6.1 Public versus private institutions.
11.6.2 Exclusion of speakers and events.
11.6.3 Trespass statutes and ordinances, and related campus regulations.
11.6.4 Soliciting and canvassing. Overview. Commercial solicitation. Noncommercial solicitation.
11.7 Community Activities of Faculty Members and Students.
Selected Annotated Bibliography.
12. The College and the State Government.
12.1 Overview.
12.2 State Provision of Public Postsecondary Education.
12.2.1 Overview.
12.2.2 Statutorily based institutions.
12.2.3 Constitutionally based institutions.
12.3 State Chartering and Licensure of Private Postsecondary Institutions.
12.3.1 Scope of state authority.
12.3.2 Chartering and licensure of religiously affiliated institutions.
12.4 State Regulation of Out-of-State Institutions and Programs.
12.5 Other State Regulatory Laws Affecting Postsecondary Education Programs.
12.5.1 Overview.
12.5.2 Open meetings and public disclosure.
12.5.3 Open-records laws.
12.5.4 State administrative procedure laws.
12.5.5 Laws regulating medical services and medical research.
Selected Annotated Bibliography.
13. The College and the Federal Government.
13.1 Federal Constitutional Powers Over Education.
13.1.1 Overview.
13.1.2 Spending power.
13.1.3 Taxing power.
13.1.4 Commerce power.
13.1.5 Civil rights enforcement powers.
13.1.6 State sovereign immunity from suit.
13.2 Federal Regulation of Postsecondary Education.
13.2.1 Overview.
13.2.2 Immigration laws.
13.2.3 Regulation of research. Overview. Laws governing research on human subjects. Laws governing animal research. Research misconduct.
13.2.4 USA PATRIOT Act and related laws.
13.2.5 Copyright law. Overview. The fair use doctrine. Guidelines. Course packs. Research copies. Use of author's own work. Use of unpublished material. Fair use of other types of expression. Fair use summary. Performance rights. The 'work made for hire' doctrine. Coypright and coauthorship. Liability for infringement. Licensing. Sovereign immunity. Other copyright issues. Scope of copyright protection. Music. Anti-circumvention. Term extension. Copyright and standardized tests.
13.2.6 Patent law. Overview. Patentability. Ownership of patents. Infringement lawsuits. Sovereign immunity.
13.2.7 Trademark law.
13.2.8 Antitrust law.
13.2.9 Federal Trade Commission Act.
13.2.10 Environmental laws.
13.2.11 Americans with Disabilities Act.
13.2.12 Laws regulating computer network communications. Computer statutes. General statutes.
13.2.13 Medicare.
13.2.14 HIPAA.
13.2.15 False Claims Act and other fraud statutes.
13.3 Federal Taxation of Postsecondary Education.
13.3.1 Introduction and overview.
13.3.2 Tax exempt status.
13.3.3 Tax exempt status and intermediate sanctions.
13.3.4 Tax rules regarding students.
13.3.5 The unrelated business income tax (UBIT).
13.3.6 Gifts and contributions.
13.3.7 Related entities and commercialization.
13.3.8 IRS audit guidelines.
13.4 Federal Aid-to-Education Programs.
13.4.1 Functions and history.
14.4.2 Distinction between federal aid and federal procurement.
13.4.3 Legal structure of aid programs.
13.4.4 'Cross-cutting' aid conditions. Drug-free Workplace Act of 1988. Drug-free Schools and Communities Act Amendments. Student Right-to-Know Act.
13.4.5 Enforcing compliance with aid conditions.
13.4.6 Protecting institutional interests in disputes with funding agencies.
13.5 Civil Rights Compliance.
13.5.1 General considerations.
13.5.2 Title VI.
13.5.3 Title IX.
13.5.4 Section 504.
13.5.5 Age Discrimination Act.
13.5.6 Affirmative Action.
13.5.7 Scope and coverage problems. Coverage of employment discrimination. Coverage of unintentional discriminatory acts. Scope of the phrase 'receiving federal financial assistance'. Scope of the phrase 'program or activity'. Coverage of retaliatory acts. Coverage of extraterritorial acts.
13.5.8 Administrative enforcement.
13.5.9 Other enforcement remedies.
13.6 Dealing with the Federal Government.
13.6.1 Handling federal rule making and regulations.
13.6.2 Obtaining information.
Selected Annotated Bibliography.
14. The College and the Education Associations (on website).
14.1 Overview of the Education Associations.
14.2 Applicable Legal Principles.
14.3 The College and the Accrediting Agencies.
14.3.1 Overview of accrediting agencies.
14.3.2 Accreditation and the courts. Formative developments. Common law. The U.S. Constitution. Antitrust law. Defamation law and tort law. Bankruptcy law.
14.3.3 Accreditation and the U.S. Department of Education.
14.3.4 Dealing with accrediting agencies.
14.4 Athletic Associations and Conferences.
14.4.1 Federal constitutional constraints.
14.4.2 State statutes regulating athletic associations' enforcement activities.
14.4.3 Antitrust laws.
14.4.4 Common law principles.
14.4.5 Federal civil rights statutes.
14.5 The American Association of University Professors.
14.6 Dealing with the Education Associations.
Selected Annotated Bibliography.
15. The College and the Business/Industrial Community (on website).
15.1 The Contract Context for College Business Transactions.
15.1.1 Overview.
15.1.2 Types of contracts and contract terms.
15.1.3 Elements of the contract.
15.1.4 Breach of contract and remedies for breach.
15.1.5 Arbitration.
15.2 The College as Purchaser.
15.2.1 Purchase of goods.
15.2.2 Purchase of services.
15.2.3 Purchase of real estate.
15.2.4 The special case of design and construction contracts. General principles. Contract formation. Liability problems.
15.3 The College as Seller/Competitor.
15.3.1 Auxiliary enterprises. Overview. Institutional authority to operate.
15.3.2 State non-competition statutes.
15.3.3 Federal antitrust law.
15.3.4 Taxation of income from entrepreneurial activities. Federal unrelated business income tax (UBIT). State and local taxation.
15.3.5 Administering auxiliary enterprises.
15.4 The College as Research Collaborator and Partner.
15.4.1 Potentials and problems.
15.4.2 The research agreement.
15.4.3 Application of patent law.
15.4.4 Federal tax exemptions for research.
15.4.5 Application of antitrust law.
15.4.6 Federal government incentives for research collaboration.
15.4.7 Conflicts of interest.
Selected Annotated Bibliography.

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