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The Law of Higher Education, A Comprehensive Guide to Legal Implications of Administrative Decision Making, 2 Volume Set, 5th Edition

The Law of Higher Education, A Comprehensive Guide to Legal Implications of Administrative Decision Making, 2 Volume Set, 5th Edition

William A. Kaplin, Barbara A. Lee

ISBN: 978-1-118-03201-5 July 2013 Jossey-Bass 2128 Pages


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The Law of Higher Education, Fifth Edition, is the most up-to-date and comprehensive reference, research source, and practical legal guide for college and university administrators, campus attorneys, legal counsel, and institutional researchers, addressing all the major legal issues and regulatory developments in higher education.

In the increasingly litigious environment of higher education, William A. Kaplin and Barbara A. Lee’s clear, cogent, and contextualized legal guide proves more and more indispensable every year.

Over 3,000 new cases related to higher education have been decided since the publication of the previous edition, and scores of changes to higher education law are made each year. Every section of the fifth edition contains new material, including those related to:

  • Hate speech and free speech rights of faculty in public universities
  • Sharing of research with international colleagues
  • Intellectual property and peer-to-peer file sharing
  • Student suicide
  • Campus safety
  • Police and administrators’ right to search students’ residence hall rooms
  • Governmental support for religious institutions and religious autonomy rights of individual public institutions
  • Collective bargaining and antidiscrimination laws
  • Nondiscrimination and affirmative action in employment, admissions, and financial aid
  • Family and Medical Leave Act and workers’ compensation
  • FERPA (Family Educational Rights and Privacy Act)

Notice to Instructors

Notice of Web Site and Periodic Supplements



The Authors


1 Overview of Higher Education Law

Section 1.1. How Far the Law Reaches and How Loudly It Speaks

Section 1.2. Evolution of Higher Education Law

Section 1.3. The Governance of Higher Education

Section 1.4. Sources of Higher Education Law

Section 1.5. The Public-Private Dichotomy

Section 1.6. Religion and the Public-Private Dichotomy

Section 1.7. The Relationship Between Law and Policy

Selected Annotated Bibliography

2 Legal Planning and Dispute Resolution

Section 2.1. Legal Liability

Section 2.2. Litigation in the Courts

Section 2.3. Alternative Dispute Resolution

Section 2.4. Legal Services

Section 2.5. Institutional Management of Liability Risk

Selected Annotated Bibliography


3 The College and Its Trustees and Officers

Section 3.1. The Question of Authority

Section 3.2. Sources and Scope of Authority and Liability

Section 3.3. Institutional Tort Liability

Section 3.4. Institutional Contract Liability

Section 3.5. Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability)

Section 3.6. Captive and Affiliated Organizations

Selected Annotated Bibliography

4 The College and Its Employees

Section 4.1. Overview of Employment Relationships

Section 4.2. Pre-hire Considerations

Section 4.3. Employment Contracts

Section 4.4. Civil Service Rules

Section 4.5. Collective Bargaining

Section 4.6. Other Employee Protections

Section 4.7. Personal Liability of Employees

Section 4.8. Performance Management Issues

Selected Annotated Bibliography

5 Nondiscrimination and Affirmative Action in Employment

Section 5.1. The Interplay of Statutes, Regulations, and Constitutional Protections

Section 5.2. Sources of Law

Section 5.3. The Protected Classes

Section 5.4. Affirmative Action

Section 5.5. Application of Nondiscrimination Laws to Religious Institutions

Selected Annotated Bibliography


6 Faculty Employment Issues

Section 6.1. Overview

Section 6.2. Faculty Contracts

Section 6.3. Faculty Collective Bargaining

Section 6.4. Application of Nondiscrimination Laws to Faculty Employment Decisions

Section 6.5. Affirmative Action in Faculty Employment Decisions

Section 6.6. Standards and Criteria for Faculty Personnel Decisions

Section 6.7. Procedures for Faculty Employment Decisions

Section 6.8. Closure, Merger, and Reduction in Force

Selected Annotated Bibliography

7 Faculty Academic Freedom and Freedom of Expression

Section 7.1. General Concepts and Principles

Section 7.2. Academic Freedom in Teaching

Section 7.3. Academic Freedom in Research and Publication

Section 7.4. Academic Freedom in Institutional Affairs

Section 7.5. Academic Freedom in Private Life

Section 7.6. Administrators’ Authority Regarding Faculty Academic Freedom and Freedom of Expression

Section 7.7. Protection of Confidential Academic Information: The “Academic Freedom Privilege”

Section 7.8. Academic Freedom in Religious Colleges and Universities

Selected Annotated Bibliography


8 The Student-Institution Relationship

Section 8.1. The Legal Status of Students

Section 8.2. Admissions

Section 8.3. Financial Aid

Section 8.4. Student Housing

Section 8.5. Campus Computer Networks

Section 8.6. Campus Security

Section 8.7. Other Support Services

Section 8.8 Student Records

Selected Annotated Bibliography

9 Student Academic Issues

Section 9.1. Overview

Section 9.2. Grading and Academic Standards

Section 9.3. Online Programs

Section 9.4. Academic Accommodations for Students with Disabilities.

Section 9.5. Sexual Harassment of Students by Faculty Members

Section 9.6. Academic Dismissals and Other Academic Sanctions

Section 9.7. Degree Revocation

Selected Annotated Bibliography

10 Student Disciplinary Issues

Section 10.1. Disciplinary and Grievance Systems

Section 10.2. Disciplinary Rules and Regulations

Section 10.3. Procedures for Suspension, Dismissal, and Other Sanctions

Section 10.4. Student Protests and Freedom of Speech

Section 10.5. Speech Codes and the Problem of Hate Speech

Selected Annotated Bibliography

11 Rights and Responsibilities of Student Organizations and Their Members

Section 11.1. Student Organizations

Section 11.2. Fraternities and Sororities

Section 11.3. The Student Press

Section 11.4. Athletic Teams and Clubs

Selected Annotated Bibliography


12 Local Governments and the Local Community

Section 12.1. General Principles

Section 12.2. Zoning and Land Use Regulation

Section 12.3. Local Government Taxation

Section 12.4. Student Voting in the Community

Section 12.5. Relations with Local Police

Section 12.6. Community Access to the College’s Campus

Section 12.7. Community Activities of Faculty Members and Students

Selected Annotated Bibliography

13 The College and the State Government

Section 13.1. Overview

Section 13.2. State Provision of Public Postsecondary Education

Section 13.3. State Chartering and Licensure of Private Postsecondary Institutions

Section 13.4. State Regulation of Out-of-State Institutions and Programs

Section 13.5. Other State Regulatory Laws Affecting Postsecondary Education Programs

Selected Annotated Bibliography

14 The College and the Federal Government

Section 14.1. Federal Constitutional Powers over Education

Section 14.2. Federal Regulation of Postsecondary Education

Section 14.3. Federal Taxation of Postsecondary Education

Section 14.4. Federal Aid-to-Education Programs

Section 14.5. Civil Rights Compliance

Section 14.6. Dealing with the Federal Government

Selected Annotated Bibliography

15 The College and the Education Associations

Section 15.1. Overview of the Education Associations

Section 15.2. Applicable Legal Principles

Section 15.3. The College and the Accrediting Agencies

Section 15.4. Athletic Associations and Conferences

Selected Annotated Bibliography

16 The College and the Business and Industrial Community

Section 16.1. The Contract Context for College Business Transactions

Section 16.2. The College as Purchaser

Section 16.3. The College as Seller and Competitor

Section 16.4. The College as Research Collaborator and Partner

Selected Annotated Bibliography


“[The Law of Higher Education] transcends the law—an important enough topic in itself—to be essential reading for anyone interested in understanding the complexities of organizing and managing American Higher Education Institutions.” —The Journal of Higher Education