The Law of Higher Education, Student Version, 4th Edition
July 2007, Jossey-Bass
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
Notice of Web Site and Periodic Supplements for the Student Version.
Crosswalk for the Student Version and The Law of Higher Education, 4th Edition.
General Introduction: The Study of Higher Education Law.
A. The Universe of Higher 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 Loud 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.
1.4.2 External sources of law.
126.96.36.199 Federal and state constitutions.
188.8.131.52 Administrative rules and regulations.
184.108.40.206 State common law.
220.127.116.11 Foreign and international law.
1.4.3 Internal sources of law.
18.104.22.168 Institutional rules and regulations.
22.214.171.124 Institutional contracts.
126.96.36.199 Academic custom and usage.
1.4.4 The role of case law.
1.4.5 Researching case law.
1.5 The Public-Private Dichotomy.
1.5.2 The state action doctrine.
1.5.3 Other bases for legal rights in private institutions.
1.6 Religion and the Public-Private Dichotomy.
1.6.2 Religious autonomy rights of religious institutions.
1.6.3 Government support for religious institutions.
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.
2.1.2 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.
2.2.2 Judicial (academic) deference.
2.2.3 Managing litigation and the threat of litigation.
2.3 Alternate Dispute Resolution.
2.3.2 Types of ADR.
2.3.3 Applications to colleges and universities.
PART TWO: THE COLLEGE AND ITS GOVERNING BOARD AND STAFF.
3 The College’s Authority and Liability.
3.1 The Question of Authority.
3.1.2 Trustee authority.
3.2 Institutional Tort Liability.
188.8.131.52 Premises liability.
184.108.40.206 Liability for injuries related to on-campus instruction.
220.127.116.11 Liability for injuries in off-campus courses.
18.104.22.168 Liability for cocurricular and social activities.
22.214.171.124 Student suicide.
126.96.36.199 Liability for injuries related to outreach programs.
3.2.3 Educational malpractice.
3.3 Institutional Contract Liability.
3.4 Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability).
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.
4.3.2 The public-private dichotomy in collective bargaining.
4.3.3 Collective bargaining and antidiscrimination laws.
4.4 Personal Liability of Employees.
4.4.2 Tort liability.
4.4.3 Contract liability.
4.4.4 Constitutional liability (personal liability under Section 1983).
188.8.131.52 Qualified immunity.
184.108.40.206 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.
220.127.116.11 Title VII.
18.104.22.168 Equal Pay Act.
22.214.171.124 Title IX.
126.96.36.199 Section 1981.
188.8.131.52 Americans With Disabilities Act and Rehabilitation Act of 1973.
184.108.40.206 Age Discrimination in Employment Act.
220.127.116.11 Constitutional prohibitions against employment discrimination.
18.104.22.168 Executive Orders 11246 and 11375.
22.214.171.124 State law prohibitions on sexual orientation discrimination.
4.6 Affirmative Action.
4.6.2 Affirmative action under Title VII.
4.6.3 Affirmative action under the equal protection clause.
4.7 Application of Nondiscrimination Laws to Religious Institutions.
PART THREE: THE COLLEGE AND ITS FACULTY.
5 Special Issues in Faculty Employment.
5.2 Faculty Contracts.
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.
5.4.2 Judicial deference and remedies for tenure denial.
5.5 Affirmative Action in Faculty Employment Decisions.
5.6 Standards and Criteria for Faculty Personnel Decisions.
5.6.1 General principles.
5.6.2 Terminations of tenure for cause.
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.
126.96.36.199 Nonrenewal of contracts.
188.8.131.52 Denial of tenure.
184.108.40.206 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 Academic freedom: Basic concepts and distinctions.
6.1.3 Professional versus legal concepts of academic freedom.
6.1.4 The foundational constitutional law cases.
6.1.5 External versus internal restraints on academic freedom.
6.1.6 “Institutional” academic freedom.
6.2 Academic Freedom in Teaching.
6.2.1 In general.
6.2.2 The classroom.
6.2.4 Private institutions.
6.3 Academic Freedom in Research and Publication.
6.4 Academic Freedom in Religious Colleges and Universities.
PART FOUR: THE COLLEGE AND ITS STUDENTS.
7 The Student/Institution Relationship.
7.1 The Legal Status of Students.
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.
7.2.1 Basic legal requirements.
7.2.3 The contract theory.
7.2.4 The principle of nondiscrimination.
220.127.116.11 Immigration status.
7.2.5 Affirmative action programs.
7.3 Financial Aid.
7.3.1 General principles.
7.3.2 Federal programs.
7.3.4 Affirmative action in financial aid programs.
7.4 Student Housing.
7.4.1 Housing regulations.
7.4.2 Searches and seizures.
7.5 Campus Computer Networks.
7.5.1 Freedom of speech.
7.5.2 Liability issues.
7.6 Campus Security.
7.6.1 Security officers.
7.6.2 Protecting students against violent crime.
7.6.3 Federal statues and campus security.
7.7 Other Support Services.
7.7.2 Services for students with disabilities.
7.7.3 Services for international students.
8 Rights and Responsibilities of Individual Students.
8.1 Disciplinary and Grievance Systems.
8.1.2 Establishment of systems.
8.1.3 Codes of student conduct.
8.1.4 Judicial systems.
8.2 Disciplinary Rules and Regulations.
8.2.2 Public institutions.
8.2.3 Private institutions.
8.2.4 Disciplining students with psychiatric illnesses.
8.3 Grades, Credits, and Degrees.
8.3.2 Awarding of grades and degrees.
8.3.3 Sexual harassment of students by faculty members.
8.3.4 Evaluating students with disabilities.
18.104.22.168 The concept of disability.
22.214.171.124 Notice and documentation of disabilities.
126.96.36.199 Requests for programmatic or instructional accommodations.
8.4 Procedures for Suspension, Dismissal, and Other Sanctions.
8.4.2 Public institutions: Disciplinary sanctions.
8.4.3 Public institutions: Academic sanctions.
8.4.4 Private institutions.
8.5 Student Protests and Freedom of Speech.
8.5.1 Student free speech in general.
8.5.2 The “public forum” concept.
8.5.3 Regulation of student protest.
8.5.4 Prior approval of protest activities.
8.5.5 Posters and leaflets.
8.5.6 Protests in the classroom.
8.6 Speech Codes and the Problem of Hate Speech.
8.6.1 Hate speech and the campus.
8.6.2. The case law on hate speech and speech codes.
8.6.3. Guidelines for dealing with hate speech on campus.
8.7 Student Files and Records.
8.7.1 Family Educational Rights and Privacy Act (FERPA).
8.7.2 State law.
9 Rights and Responsibilities of Student Organizations and Their Members.
9.1 Student Organizations.
9.1.1 The right to organize.
9.1.2 The right not to join, or associate, or subsidize.
9.1.3 Mandatory student activities fees.
9.1.4 Principle of nondiscrimination.
9.1.5 Religious activities.
9.2 Fraternities and Sororities.
9.2.2 Institutional recognition and regulation of fraternal organizations.
9.2.3 Institutional liability for the acts of fraternal organizations.
9.3 The Student Press.
9.3.1 General principles.
9.3.2 Mandatory student fee allocations to student publications.
9.3.3 Permissible scope of institutional regulation.
9.3.6 Obscenity and libel in private institutions.
9.4 Athletics Teams and Clubs.
9.4.1 General principles.
9.4.2 Athletes’ due process rights.
9.4.3 Athletes’ freedom of speech.
9.4.4 Pertinent statutory law.
9.4.5 Athletic scholarships.
9.4.6 Sex discrimination.
9.4.7 Discrimination on the basis of disability.
9.4.8 Drug testing.
9.4.9 Tort liability for athletic injuries.
PART FIVE: THE COLLEGE AND THE OUTSIDE WORLD.
10 The College and Government.
10.1 Local Government Regulation.
10.1.1 Overview of local government regulation.
10.1.2 Trespass statutes and ordinances, and related campus regulations.
10.2 State Government Regulation.
10.2.2 State provision of public postsecondary education.
10.2.3 State chartering and licensure of private postsecondary institutions.
10.3 Federal Government Regulation.
10.3.1 Overview of federal constitutional powers over education.
10.3.2 Overview of federal regulation of postsecondary education.
10.3.3 Regulation of intellectual property.
10.3.3.1. Copyright law.
10.4 Federal Aid-to-Education Programs.
10.4.1 Functions and history.
10.4.2 Legal structure of federal aid programs.
10.5 Civil Rights Compliance.
10.5.1 General considerations.
10.5.2 Title VI.
10.5.3 Title IX.
10.5.4 Section 504.
10.5.5 Coverage of unintentional discriminatory acts.
11 The College and External Private Entities.
11.1 Education Associations.
11.1.1 Overview of the education associations.
11.1.2 Accrediting agencies.
11.1.3 Athletic associations and conferences.
11.2 Business Partners.
11.2.1 Research collaboration.
11.2.2 The research agreement.
A. Constitution of the United States of America: Provisions of Particular Interest to Postsecondary Education.
B. The American Court System.
C. Reading and Analyzing Court Opinions.
D. Glossary of Legal Terms.
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.