The Law of Higher Education, 2 Volume Set

By William A. Kaplin and Barbara A. Lee

Make sure you have a copy on your bookshelf.

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)

• Language: English
• Publisher: Wiley
• Release date: Jul 25, 2013
• ISBN: 9781118534281

Book preview

Contents

Notice to Instructors

Notice of Web Site and Periodic Supplements for the Fifth Edition

Preface

Acknowledgments

The Authors

Part One: Perspectives and Foundations

Chapter 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

Chapter 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

Part Two: The College and its Governing Board, Personnel, and Agents

Chapter 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

Chapter 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

Chapter 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

Part Three: The College and its Faculty

Chapter 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

Chapter 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

Part Four: The College and its Students

Chapter 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

Copyright © 2013, 2006, 1995 by John Wiley & Sons, Inc. All rights reserved.

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ISBN 978-1-118-03202-2 (vol. 1)

ISBN 978-1-118-03203-9 (vol. 2)

Library of Congress Cataloging-in-Publication Data

Kaplin, William A.

The law of higher education : a comprehensive guide to legal implications of administrative decision making / William A. Kaplin, Barbara A. Lee. — Fifth edition.

volumes cm. — (The Jossey-Bass higher and adult education series)

Includes bibliographical references and index.

ISBN 978-1-118-03201-5 (hardback); ISBN 978-1-118-53433-5 (ebk.); ISBN 978-1-118-53428-1 (ebk.)

1. Universities and colleges—Law and legislation—United States. 2. Universities and colleges—United States—Administration. I. Lee, Barbara A. II. Title.

KF4225.K36 2013

344.73’074—dc23

2013017886

Library of Congress Cataloging-in-Publication Data has been applied for and is on file with the Library of Congress.

Much as it takes a village to raise a child (a saying of obscure origin), it takes an academical village (Thomas Jefferson’s phrase) to raise a book—at least a book such as this that arises from, and whose purpose is to serve, a national (and now international) academic community. This book is dedicated to all those members of our academical village who in numerous and varied ways have helped raise this book from its origins through this fifth edition, and to all those members who will face the great challenges of law and policy that will shape higher education’s future

Notice to Instructors

A Student Version of The Law of Higher Education, fifth edition, will be published shortly after this fifth edition is published, as will a volume of classroom teaching materials for instructors and students using the fifth edition. In addition, a Web site supporting the fifth edition and the Student Version will be available to instructors and students. This Web site will be hosted by the National Association of College and University Attorneys (NACUA) and will be accessible at http://www.nacua.org/publications/lohe/index.asp. There will also be an Instructor’s Manual available only to instructors, which will be on the Web site of Jossey-Bass (http://www.josseybass.com) as well as on the NACUA Web site.

The Law of Higher Education: Student Version will be approximately one-half the length of the fifth edition and will contain material from the fifth edition that has been carefully selected by the authors for its particular relevance for classroom instruction. The Student Version will also include a new Preface, a General Introduction to the study of higher education law, and four appendices directed specifically to students and instructors. This Student Version will be available from Jossey-Bass in the spring of 2014.

The volume of teaching materials—Cases, Problems, and Materials for Use with The Law of Higher Education, Fifth Edition—is for instructors and students in courses on higher education law, as well as for leaders and participants in workshops that address higher education legal issues. There are two versions of these materials, one keyed to the fifth edition and one keyed to the Student Version. The materials include court opinions carefully edited by the authors; notes and questions about the cases; short problems designed to elicit discussion on particular issues; a series of large-scale problems suitable for role playing; and guidelines for analyzing and answering all the problems. Cases, Problems, and Materials will be available from the National Association of College and University Attorneys and may be obtained in electronic format that can be downloaded from NACUA’s Web site or in hard copies available for purchase at cost from NACUA (see below). Any instructor who has adopted the Student Version or the full fifth edition as a required course text may obtain permission from NACUA to download a copy of Cases, Problems, and Materials or selected portions of it, free of charge, and to reproduce the materials for distribution to students in the course. No other reproduction, distribution, or transmission is permitted. To obtain such permission, or to inquire about or order hard copies, contact:

Meetings and Office Services Assistant

National Association of College and University Attorneys

Suite 620, One Dupont Circle, NW

Washington, DC 20036

(202) 833–8390; Fax [phone]

Through NACUA, the authors also plan to provide Web site postings on recent legal developments and new research resources, as well as periodic supplements to the Law of Higher Education books, as described in the Notice that immediately follows this one. These services should greatly assist instructors in keeping their courses up to date. Further information on these various resources and instructions for using them are on the NACUA Web site.

Notice of Web Site and Periodic Supplements for the Fifth Edition

The authors, in cooperation with the publisher, have made arrangements for two types of periodic updates for this fifth edition of The Law of Higher Education. First, beginning with the publication of the fourth edition in 2006, the National Association of College and University Attorneys (NACUA) has hosted a Web site for The Law of Higher Education and its progeny, including the Student Version of The Law of Higher Education and A Legal Guide for Student Affairs Professionals. A primary purpose of this Web site is to provide quick access to the authors’ brief updates and citations on major new developments and resources that affect the discussions in these books. (There are also teaching materials on the Web site, as described in the Notice immediately preceding this one.) The Web site may be accessed through the NACUA Web site at http://www.nacua.org/publications/lohe/index.asp. Further directions for using the Web site will also be available at this address.

As the second means of updating, the authors plan to prepare periodic supplements to this fifth edition of The Law of Higher Education (as well as the Student Version). These supplements will be available approximately every two years and will be published by NACUA. These updating services for users of The Law of Higher Education, the Student Version, or the Student Affairs volume are intended to be a response to the law’s dynamism—to the rapid and frequent change that occurs as courts, legislatures, government agencies, and private organizations develop new requirements, revise or eliminate old requirements, and devise new ways to regulate and influence institutions of higher education.

Preface

Overview of the Fifth Edition

Operating the colleges and universities of today presents a multitude of challenges for their leaders and personnel. Often the issues they face involve institutional policy, but with continually increasing frequency these issues have legal implications as well. Examples abound. A student enrolled in an online course may commit plagiarism or some other alleged violation of the code of student conduct. In what ways may the college discipline the student, and what process should be followed? A staff member may become a whistleblower and allege that the college is violating the law. Suppose the college was preparing to dismiss the complaining staff member for poor performance just before he blew the whistle? May the college still dismiss the staff member? A student religious organization may approach the dean of students seeking recognition or an allocation from the fund for student activities. If membership is limited to students of a particular faith, or if the student organization does not admit gays or lesbians, how should the administration respond? A faculty member may challenge a negative promotion or tenure decision on the ground that her performance was negatively affected by a disability. Is the college required to modify the tenure criteria it applies to the faculty member, or might the faculty member have other rights to assert? A faculty member is disciplined by the school’s dean for having made various comments to high-level administrators and the press about the importance of racially and ethnically diverse faculty and the school’s failure to work toward this goal. The faculty member claims a violation of free speech and academic freedom. Is this a viable claim? A wealthy alumna may call the vice president for student affairs and offer to make a multimillion-dollar donation for scholarships on the condition that the scholarships be awarded only to African-American students from disadvantaged families. Can and should the vice president accept the donation and follow the potential donor’s wishes?

We have designed this book as a resource for college and university attorneys, officers and administrators, trustees, faculty, and staff who may face issues such as these or innumerable others. The book provides foundational information and conceptual building blocks, in-depth analysis of key developments, and practical suggestions on a wide array of legal and policy issues faced by public and private institutions; the book also recommends and describes numerous additional resources to aid research, analysis, and legal planning. In particular, the book identifies trends and tracks their implications for academic institutions—often pointing out how particular legal developments may clash with, or support, important academic practices or values. In addition, the book explores relationships between law and policy, suggests preventive law measures for institutions to consider, and includes other suggestions and perspectives that serve to facilitate effective working relationships between counsel and administrators who grapple with law’s impact on their campuses.

The discussions draw upon pertinent court opinions, constitutional provisions, statutes, and administrative regulations, as well as selected secondary sources such as journal articles, books, reports, and Web sites. In selecting topics and cases for discussion, we have primarily considered their significance for higher education policy making or legal risk management, their currency or timelessness, and their usefulness as illustrative examples of particular problems or as practical applications of particular legal principles.

Relationship Between the Fifth Edition and Earlier Editions

This fifth edition of The Law of Higher Education is the successor to the fourth edition, published in 2006, and the periodic supplement published in 2009. The fifth edition features a major reorganization of materials, especially in Chapters 9 and 10, and a thoroughly revised, updated, and expanded text. This edition is current to approximately June 2012 with the occasional addition of selected new developments beyond June 2012.

In the years since publication of the fourth edition and then its supplement, many new and newly complex legal concerns have arisen on U.S. campuses—from the implications of the Internet for teaching and research, to continuing conflict about affirmative action in admissions and financial aid, to the application of institutional nondiscrimination policies to student religious organizations, to the clash between faculty and institutional academic freedom, to the rights of intercollegiate athletes, to name a few. Indeed, it is difficult to identify any other entities—including large corporations and government agencies—that are subject to as great an array of legal requirements as are colleges and universities. To serve the needs occasioned by this continual growth of the law, the fifth edition retains all material of continuing legal currency from the fourth edition and the 2009 supplement, reorganized and reedited (and often reanalyzed) to accommodate the deletion and addition of materials and to maximize clarity and accessibility. To this base, we have added considerable new material that did not appear in earlier editions or supplements. Specifically, we have extended the discussion of matters that appeared (in hindsight) to have been given insufficient attention in earlier editions or that have since acquired greater significance; integrated pertinent new developments and insights regarding topics in the earlier editions; and introduced numerous new topics and issues not covered in earlier editions. (See the listing of new sections below under the heading What Is New in This Edition.)

Although considerable material from earlier editions has lost its legal currency as a result of later developments, we have nevertheless retained some of this material for its continuing historical significance. What has been retained, however, is often presented in a more compressed format than in earlier editions. Thus, readers desiring additional historical context for particular issues may wish to consult the first, second, third, and fourth editions. Moreover, we have sometimes deleted or compressed material that still has legal currency, because later cases or developments provide more instructive illustrations. Thus, readers seeking additional examples of particular legal issues may also wish to consult previous editions.

Like the earlier editions, the fifth edition covers all of postsecondary education—from the large state university to the small private liberal arts college, from the graduate and professional school to the community college and vocational and technical institution, and from the traditional campus-based program to the innovative off-campus or multistate program, and now to distance learning as well. The fifth edition also reflects the same perspective on the intersection of law and education as described in the preface to the first edition:

The law has arrived on the campus. Sometimes it has been a beacon, at other times a blanket of ground fog. But even in its murkiness, the law has not come on little cat feet, like Carl Sandburg’s Fog; nor has it sat silently on its haunches; nor will it soon move on. It has come noisily and sometimes has stumbled. And even in its imperfections, the law has spoken forcefully and meaningfully to the higher education community and will continue to do so.

Audience

The Law of Higher Education was originally written for administrative officers, trustees, and legal counsel who dealt with the many challenges and complexities that arise from the law’s presence on campus, and for students and observers of higher education and law who desired to explore the intersection of these two disciplines. Beginning with the third edition, and continuing through this fifth edition, we have expanded the book’s materials and scope to serve additional groups who regularly encounter legal conflicts and challenges in their professional lives: for example, directors of student judicial affairs offices; directors of equal opportunity offices; directors of offices for disabled students and for foreign students, and directors of resident life; deans and department chairs; risk managers; business managers and managers of grants and contracts; technology transfer, intellectual property, and sponsored research administrators; athletic directors; and directors of campus security. In addition, others outside the colleges and universities may find this fifth edition useful: for example, officers and staff at higher education associations, executives and project officers of foundations serving academia, education policy makers in state and federal governments, and attorneys representing clients who enter into transactions with or have disputes with postsecondary institutions.¹

To be equally usable by administrators and legal counsel, the text avoids legal jargon and technicalities whenever possible and explains them when they are used. Footnotes throughout the book are designed primarily to provide additional technical analysis and research resources for legal counsel.

In seeking to serve its various audiences, this book organizes and conceptualizes the entire range of legal considerations pertinent to the operation of colleges and universities. We have also sought to clearly subdivide the many chapters and sections of the book, and to clearly label them, so that our readers can easily identify which sections are of primary concern to them.

Organization

We have organized this fifth edition into sixteen chapters, up from nine chapters in the third edition and from fifteen chapters in the fourth edition. These chapters are in turn organized into six parts: (1) Perspectives and Foundations; (2) The College and Its Governing Board, Personnel, and Agents; (3) The College and Its Faculty; (4) The College and Its Students; (5) The College and Local, State, and Federal Governments; and (6) The College and External Private Entities. Each of the sixteen chapters is divided into numerous sections and subsections.

Chapter 1 provides a framework for understanding and integrating what is presented in subsequent chapters and a perspective for assimilating future legal developments. Chapter 2 addresses foundational concepts concerning legal liability, preventive law, and the processes of litigation and alternative dispute resolution. Chapters 3 through 11 discuss legal concepts and issues affecting the internal relationships among the various members of the campus community and address the law’s impact on particular roles, functions, and responsibilities of trustees, administrators, faculty, and students. Chapters 12, 13, and 14 are concerned with the postsecondary institution’s external relationships with government at the local, state, and federal levels. These chapters examine broad questions of governmental power and process that cut across all the internal relationships and administrative functions considered in Chapters 3 through 11. Chapters 12 through 14 also discuss particular legal issues arising from the institution’s dealings with government and identify connections between these issues and those explored in the earlier chapters. Chapters 15 and 16 also deal with the institution’s external relationships, but the relationships explored are those with the private sector rather than with government. Chapter 15 covers the various national and regional education associations with which the institution interacts. Chapter 16 covers the myriad relationships—many on the cutting edge—that institutions are increasingly forging with commercial and industrial enterprises.

What Is New in This Edition

On the stage set by recent developments, many new topics of concern have emerged, and older topics that once were bit players have assumed major roles. To cover these topics, the fifth edition adds several entirely new sections. These new sections cover various employment issues, such as applicant screening (Section 4.2.3), investigating employees (Section 4.3.3.6), coaches’ contracts (Section 4.3.3.8), free speech rights of staff (Section 4.6.10), and social media and e-mail privacy (Section 4.6.11). New additions to the discussion of employment discrimination include the Genetic Information Nondiscrimination Act (GINA, Section 5.2.7) and laws prohibiting discrimination on the basis of transgender status (Section 5.2.11). Another new section covers international academic freedom (Section 7.1.8). Section 7.1.2 covers other constitutional rights supporting faculty freedom of expression. Section 8.5.2 addresses the right to privacy applicable to campus computer networks. A new chapter addresses student academic issues, including grading and academic standards (Section 9.2), online programs (Section 9.3), academic accommodations for students with disabilities (Section 9.4), sexual harassment of students by faculty members (Section 9.5), academic dismissals and other sanctions (Section 9.6), and degree revocation (Section 9.7). Another new section covers state laws on gun possession (Section 13.5.6).

Other sections from the fourth edition have been reconceptualized and reorganized as well as updated: Section 7.1, which addresses academic freedom and recent court activity in that regard; Section 7.4.2 regarding faculty speech on governance matters; Section 8.2.5 on affirmative action in admissions (updated by Jonathan Alger); Section 8.4.2 on discrimination claims related to student housing; Section 8.8.1 on the Family Educational Rights and Privacy Act (FERPA); Section 9.4 on academic accommodations for students with disabilities; Section 14.2.5 on copyright law (reorganized and updated by Madelyn Wessel) and Section 14.2.6 on patent law (reorganized and updated by Madelyn Wessel and Jacob Rooksby); and Section 14.3 on federal taxation (updated by Randolph Goodman and Barclay Collins).

Yet other sections from the fourth edition or its supplement have been extensively expanded to account for important recent developments. Examples of such sections and the major new cases they address are Section 3.3.2.6 (student suicide), Section 3.3.3 (educational malpractice and student fraud claims against colleges), Section 6.6 (standards and criteria for faculty personnel decisions), Section 7.2.4 (methods of analyzing academic freedom in teaching claims), Section 7.7.3 (academic freedom in research findings), Section 10.2.4 (disciplining students with mental disorders), Section 11.1.5 (religious activities of student organizations—the Martinez case), and Section 14.3.8 (tax issues for foreign programs and campuses).

Citations and References

Each chapter ends with a Selected Annotated Bibliography. We suggest that readers use the listed books, articles, reports, Web sites, and other sources to extend the discussion of particular issues presented in the chapter, to explore related issues not treated in the chapter, to obtain additional practical guidance in dealing with the chapter’s issues, to learn the history or to keep abreast of later developments regarding a particular issue, or to identify resources for research. Other such sources pertaining to narrower issues are cited in the text, and footnotes contain additional legal resources primarily for lawyers. Court decisions, constitutional provisions, statutes, and administrative regulations are also cited throughout the text. In addition, the footnotes contain copious citations to American Law Reports (A.L.R.) annotations that collect additional court decisions on particular subjects and periodically update each collection.

The citation form for the various legal sources cited in the fifth edition generally follows The Bluebook: A Uniform System of Citation (19th ed., Columbia Law Review Association, Harvard Law Review Association, University of Pennsylvania Law Review, and Yale Law Journal, 2010). The legal sources that these citations refer to are described in Section 1.4 of this book.

A Note on Nomenclature

The fifth edition, like previous editions, uses the terms higher education and postsecondary education to refer to education that follows a high school (or K–12) education. Often these terms are used interchangeably; at other times postsecondary education is used as the broader of the two terms, encompassing formal post–high school education programs whether or not they build on academic subjects studied in high school or are considered to be advanced studies of academic subjects. Similarly, this book uses the terms higher education institution, postsecondary institution, college, and university to refer to the institutions and programs that provide post–high school (or post-K–12) education. These terms are also often used interchangeably, but occasionally postsecondary institution is used in the broader sense suggested above, and occasionally college is used to connote an academic unit within a university or an independent institution that emphasizes two-year or four-year undergraduate programs. The context generally makes clear when we intend a more specific meaning and are not using these terms interchangeably.

The term public institution generally means an educational institution operated under the auspices of a state, county, or occasionally a city government. The term private institution means a nongovernmental, nonprofit or proprietary, educational institution. The term religious institution encompasses a private educational institution that is operated by a church or other sectarian organization (a sectarian institution), that is otherwise formally affiliated with a church or sectarian organization (a religiously affiliated institution), or that otherwise proclaims a religious mission and is guided by religious values.

Recommendations for Using the Book and Keeping Up to Date

There are some precautions to keep in mind when using this book, as noted in the prefaces for the first four editions. We reemphasize them here for the fifth edition. The legal analyses throughout this book, and the numerous practical suggestions, are not adapted to the law of any particular state or to the circumstances prevailing at any particular postsecondary institution. The book is not a substitute for the advice of legal counsel, nor a substitute for further research into the particular legal authorities and factual circumstances that pertain to each legal problem that an institution, government agency, educational association, or person may face. Nor is the book necessarily the latest word on the law. There is a saying among lawyers that the law must be stable and yet it cannot stand still (Roscoe Pound, Interpretations of Legal History (1923), 1), and the law moves especially fast in its applications to postsecondary education. Thus, we urge administrators and counsel to keep abreast of ongoing developments concerning the legal sources and issues in this book. Various aids (described below) are available for this purpose.

Although new resources for staying up to date appear periodically, the total volume of pertinent law continues to grow. Thus, keeping abreast of developments is as much a challenge now as it was when the previous editions were published. To assist readers in this task, we maintain a Web site, hosted by the National Association of College and University Attorneys (NACUA), Washington, D.C. (available at http://www.nacua.org/publications/lohe/index.asp), on which we announce or post pertinent new developments and key them to the fifth edition. In addition, there is a very helpful Web site, the Campus Legal Information Clearinghouse (CLIC) (available at http://counsel.cua.edu), operated by the General Counsel’s Office at the Catholic University of America in conjunction with the American Council on Education, that includes information on recent developments, especially federal statutory and federal agency developments, and practical compliance suggestions. There is also a legal reporter that reprints new court opinions on higher education law and provides commentary on recent developments: West’s Education Law Reporter, published biweekly by Thomson West Publishing Company, St. Paul, Minnesota. (Entries for this reporter and for CLIC are in the Selected Annotated Bibliography for Chapter 1, Section 1.1.)

Also helpful are various periodicals that provide information on current legal developments. The Pavela Report, published weekly by College Administration Publications, Asheville, North Carolina, provides in-depth analysis and commentary on major contemporary issues. (This resource is also listed in the Selected Annotated Bibliography for Chapter 1, Section 1.1.) Lex Collegii, a newsletter published quarterly by College Legal Information, Nashville, Tennessee (available at http://www.collegelegal.com/lexcolhp.htm), analyzes selected legal issues and provides preventive law suggestions, especially for private institutions. And Business Officer, a monthly magazine published for its members by the National Association of College and University Business Officers (available at http://www.nacubo.org), emphasizes developments in Congress and the federal administrative agencies.

For news reporting of current events in higher education generally, but particularly for substantial coverage of legal developments, readers may wish to consult the Chronicle of Higher Education, published weekly in hard copy and daily online (available at http://www.chronicle.com) (see entry in Section 1.1 of the Selected Annotated Bibliography for Chapter 1); Inside HigherEd, published every weekday (available at http://www.insidehighered.com); or Education Daily, published every weekday (available at http://www.educationdaily.net/ED/splash.jsp).

For keeping abreast of conference papers, journal articles, and government and association reports, Higher Education Abstracts is helpful; it is compiled quarterly by the Claremont Graduate School, Claremont, California and available through the Wiley Online Library (available at http://onlinelibrary.wiley.com). The Educational Resources Information Center (ERIC) database (available at http://www.eric.ed.gov), sponsored by the U.S. Department of Education, performs a similar service encompassing books, monographs, research reports, conference papers and proceedings, bibliographies, legislative materials, dissertations, and journal articles on higher education. In addition, the IHELG monograph series published each year by the Institute for Higher Education Law and Governance, University of Houston Law Center, provides papers on a wide variety of research projects and timely topics.

For extended legal commentary on recent developments, we suggest these two journals: the Journal of College and University Law, published three times a year by NACUA and focusing exclusively on postsecondary education; and the Journal of Law and Education, which covers elementary and secondary as well as postsecondary education, published quarterly by Jefferson Lawbook Company, Cincinnati, Ohio.

A final resource may be of interest to those who wish to use the fifth edition as a classroom or workshop text. We have prepared and will periodically update a volume of teaching materials that includes edited versions of leading court opinions, notes and discussion questions, large and small problems (some of which could be used as examination questions), outlines of suggested answers, and other materials. This volume titled "Cases, Problems, and Materials for Use with The Law of Higher Education (5th ed.)," is available on the Web site of the National Association of College and University Attorneys; for further information, see the Notice to Instructors.

The overall goal for this fifth edition remains much the same as the goal for the first edition, set out in its preface. We hope that this book will provide a basis for the debate concerning law’s role on campus, for improved understanding between attorneys and academics, and for effective relationships between administrators and their counsel. The challenge of our age is not to remove the law from the campus or to marginalize it. The law is here to stay, and it will continue to play a major role in campus affairs. The challenge of our age, rather, is to make law more a beacon and less a fog. The challenge is for law and higher education to accommodate one another, preserving the best values of each for the mutual benefit of both. Just as academia benefits from the understanding and respect of the legal community, so law benefits from the understanding and respect of academia.

William A. Kaplin

Washington, D.C.

Barbara A. Lee

New Brunswick, N.J.

July 2012

¹Also, beginning with the third edition, we introduced a new book to serve the needs of the student affairs staff: A Legal Guide for Student Affairs Professionals, And beginning with the fourth edition, we introduced a new book for students and independent learners of higher education law and policy: The Law of Higher Education: Student Version. Both books draw substantially on material from the pertinent edition of The Law of Higher Education.

Acknowledgments

Many persons graciously provided assistance to us in the preparation of this fifth edition. We are grateful for each person and each contribution listed below, and for all other support and encouragement that we received along the way.

We are particularly grateful that Jonathan Alger, now President of James Madison University, agreed to update and edit nine sections and subsections of this book. Jon made these contributions while serving as Senior Vice President for Legal Affairs and General Counsel of Rutgers University, as well as serving as President of the National Association of College and University Attorneys. We are also grateful to additional colleagues whom we invited to update sections of the manuscript because of their special expertise. Madelyn Wessel, Associate General Counsel at the University of Virginia revised the section on copyright law, and Madelyn and Jacob Rooksby, Assistant Professor of Law, Duquesne University, revised the section on patent law. Randolph M. Goodman and J. Barclay Collins, partners at Wilmer, Cutler, Pickering, Hale and Dorr, LLP, updated the main section and several other subsections on federal tax law. The work of our contributors is identified by a footnote reference at the beginning of each section that they revised.

Various colleagues reviewed sections of the fifth edition manuscript, providing helpful feedback on matters within their expertise and good wishes for the project: Steven J. McDonald, general counsel, Rhode Island School of Design; Leigh Polk Cole, Partner in Dinse, Knapp & McAndrew, P.C.; Eileen Goldgeier, Vice Chancellor and General Counsel, North Carolina State University; Theresa Colecchia, Associate General Counsel, University of Pittsburgh; Nina Lavoie, Senior Associate Counsel, University of Maine System; Andrew Newton, General Counsel, Georgia Health Sciences University; and Jeffrey Swope, Partner in Edwards Wildman Palmer, LLC.

Our student research assistants provided valuable help with manuscript preparation: Taylor Stevens, Andrew Garcia, Sarah Grimme, Jana Belflower, and Tom Lyden at Stetson University; and Scott Goldschmidt and Evan Hamme at Catholic University. Jon Alger was assisted in his research by attorneys Jennifer Frost Hellstern, Sarah Luke, and Rhea Gordon.

A number of persons skillfully performed invaluable word processing and administrative services during the years in which this manuscript was in process—in particular Dianne Oeste at Stetson University and Donna Snyder at Catholic University.

Emily Black, Research Librarian at Catholic University’s school of law, provided valuable assistance with selecting and using a cite-checking program and locating resource materials. We are also grateful for the excellent work of Cathy Mallon, who managed the copyediting process, Cathy Cambron, the copy editor, and Sylvia Coates, who created the indexes. Their attention to detail and their helpful suggestions played an important role in readying the manuscript for publication.

Dean Veryl Miles at Catholic University’s school of law provided summer research grants to BK that helped greatly in moving this massive project along; and Dean Darby Dickerson at Stetson University College of Law also provided research remuneration that served the same purpose. The Dean’s Offices at both schools also supplied BK with the student research assistants named above.

The National Association of College and University Attorneys (NACUA) published the 2009 Supplement to the fourth edition of this book, as well as our supplementary teaching materials, Cases, Problems and Materials for Use with The Law of Higher Education. Linda Henderson, formerly Manager of Publications at NACUA, was primarily responsible for managing the smooth publication processes and designing the high-quality final products. Kathleen Curry Santora and Karl Brevitz at NACUA supported these publications and worked with Ms. Henderson to arrange for a Web site to support the Fourth Edition (and now this fifth edition). NACUA publications also provided us with important information and guidance in the development of several sections of the fifth edition.

Barbara Kaplin accurately assisted with proofreading for the entire length of this project, and also typed manuscript inserts as needed.

Our spouses and families once again tolerated the years of intrusion that successive editions of the book have imposed on our personal lives. They encouraged us when this fifth edition seemed too overwhelming to ever end. And they looked forward (usually patiently) to the time when the fifth edition would finally be finished—and we would get a little breathing space before any of us dare mention the forbidden words sixth edition.

The Authors

William A. Kaplin is professor of law emeritus at the Columbus School of Law, Catholic University of America, in Washington, DC, where he also served for many years as Special Counsel to the Office of General Counsel. He has been a visiting professor at Cornell Law School, at Wake Forest University School of Law, and at Stetson University College of Law; a distinguished visiting scholar at the Institute for Higher Education Law and Governance, University of Houston; and a visiting scholar at the Institute for Educational Leadership, George Washington University. He is a former member of the Education Appeal Board at the U.S. Department of Education and the former editor of the Journal of College and University Law, and has served on the Journal’s editorial board for many years. He is also a Senior Fellow at Stetson’s Center for Excellence in Higher Education Law and Policy; a founding member of the U.S./U.K. Higher Education Law Roundtable that meets every three years at New College, Oxford University; and a mentor/leader for the biannual Higher Education Law Roundtable for emerging scholars at the University of Houston Law Center.

Professor Kaplin received the American Council on Education’s Borden Award, in recognition of the First Edition of The Law of Higher Education; and the Association for Student Judicial Affairs’ D. Parker Young Award, in recognition of research contributions; and he has been named a Fellow of the National Association of College and University Attorneys. He has also been honored through the establishment, by the Center for Excellence in Higher Education Law and Policy at Stetson University, of the William A. Kaplin Award for Excellence in Higher Education Law and Policy Scholarship, a national award presented annually to a leading scholar in the field.

In addition to the various editions and updates of The Law of Higher Education, Professor Kaplin’s books include The Law of Higher Education Fourth Edition: Student Version (with Barbara Lee) (Jossey-Bass, Inc., 2007); Cases, Problems, and Materials for Use With The Law of Higher Education (with Barbara Lee) (NACUA, 2006); and A Legal Guide for Student Affairs Professionals, 2d ed. (with Barbara Lee) (Jossey-Bass, Inc., 2009). Among his other books is Constitutional Law: An Overview, Analysis, and Integration (Carolina Academic Press, 2004). He has also authored numerous articles, monographs, and reports on education law and policy and on constitutional law.

Bill Kaplin received his B.A. degree (1964) in political science from the University of Rochester and his J.D. degree with distinction (1967) from Cornell University, where he was editor-in-chief of the Cornell Law Review. He then worked with a Washington, D.C., law firm, served as a judicial clerk at the U.S. Court of Appeals for the District of Columbia Circuit, and was an attorney in the education division of the U.S. Department of Health, Education and Welfare, before joining the Catholic University law faculty.

Barbara A. Lee is professor of human resource management at the School of Management and Labor Relations, Rutgers University, in New Brunswick, New Jersey. She is also of counsel to the law firm of Edwards Wildman Palmer, LLP. She is a former dean of the School of Management and Labor Relations, and also served as associate provost, department chair, and director of the Center for Women and Work at Rutgers University. She chaired the editorial board of the Journal of College and University Law, served as a member of the Board of Directors of the National Association of College and University Attorneys, and was named a NACUA Fellow. She also serves on the Executive Committee of the New Jersey State Bar Association’s Section on Labor and Employment Law, and formerly served on the executive committee of the Human Resource Management Division of the Academy of Management. She is also a founding member of the U.S./U.K. Higher Education Law Roundtable. She received a distinguished alumni award from the University of Vermont in 2003 and the Daniel Gorenstein award from Rutgers University in 2009.

In addition to coauthoring the Third, Fourth, and Fifth Editions of The Law of Higher Education and The Law of Higher Education, Student Version, supplements and updates to the main volume, as well as A Legal Guide for Student Affairs Professionals (1997), Professor Lee also coauthored Academics in Court (1987, with George LaNoue), as well as numerous articles, chapters, and monographs on legal aspects of academic employment. She serves as an expert witness in tenure, discharge, and discrimination cases, and is a frequent lecturer and trainer for academic and corporate audiences.

Barbara Lee received her B.A. degree, summa cum laude (1971) in English and French from the University of Vermont. She received an M.A. degree (1972) in English and a Ph.D. (1977) in higher education administration from The Ohio State University. She earned a J.D., cum laude (1982) from the Georgetown University Law Center. Prior to joining Rutgers University in 1982, she held professional positions with the U.S. Department of Education and the Carnegie Foundation for the Advancement of Teaching.

PART ONE

PERSPECTIVES AND FOUNDATIONS

Chapter 1

Overview of Higher Education Law

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

Law’s presence on the campus and its impact on the daily affairs of postsecondary institutions have grown continuously at least since the 1960s. From then until the present, the volume and complexity of litigation in our society generally, and involving higher education specifically, have increased dramatically. The growth of government regulations, especially at the federal level, has also been dramatic and pervasive. The potential has increased for jury trials and large monetary damage awards, for court injunctions affecting institutions’ internal affairs, for government agency compliance investigations, and even for criminal prosecutions against administrative officers, faculty members, and students.

Many factors have contributed over the years to the development of this legalistic and litigious environment. Students’ and parents’ expectations have increased, spurred in part by increases in tuition and fees and in part by society’s consumer orientation. The greater availability of data that measures and compares institutions, and greater political savvy among students and faculty, has led to more sophisticated demands on institutions. Advocacy groups have used litigation against institutions as the means to assert faculty and student claims—and applicant claims as well, in suits concerning affirmative action in admissions and employment. Satellite campuses, off-campus programs, and distance learning have extended the boundaries of the campus, bringing into the fold of higher education a diverse array of persons whose interests may conflict with the interests of those more traditionally associated with colleges and universities. And an increasingly adversarial mindset, a decrease in civility, and a diminishing level of trust in societal institutions have made it more acceptable to assert legal claims at the drop of a hat.

Moreover, society has become more sensitized to civil rights; and Congress, state legislatures, and courts have focused more on their recognition and enforcement. Technological advances have raised a multitude of new legal issues regarding intellectual property, personal privacy, and freedom of speech. Study abroad programs, internships, and innovative field trips and off-campus assignments have created new exposures to legal risk. Federal, state, and local statutes and administrative regulations have raised difficult compliance challenges in many critical areas of campus life, such as confidentiality of records, student safety, campus security, equal opportunity, computer network communications, and the status of foreign students. Since the beginning of the new century, terrorism and the War on Terror have enhanced many of these compliance challenges and created some new ones as well.

Financial pressures have led to competition for resources, which in turn has increased the likelihood of disputes about funding, salaries, and budgets. Financial pressures have also stimulated the growth of entrepreneurial activities as alternative sources of income. Faculty members’ entrepreneurial activities have strained their traditional relationships with their institutions, while institutions’ own entrepreneurial activities have drawn them increasingly into the commercial marketplace and exposed them to additional possibilities for legal disputes. In the face of all these pressures, institutions have become better equipped to defend themselves vigorously when sued and are more willing to initiate lawsuits when the institution’s mission, reputation, or financial resources have been threatened.

Thus, whether one is responding to campus disputes, planning to avoid future disputes, or crafting an institution’s policies and priorities, law is an indispensable consideration. Legal issues arising on campuses across the United States continue to be aired not only within academia but also in external forums. For example, students, faculty members, administrators and staff members, and their institutions have increasingly litigated their claims in the courts, and their disputes have more frequently involved outside parties (government agencies, corporations, and individuals). Institutions have responded by expanding their legal staffs and outside counsel relationships and by increasing the number of administrators in legally sensitive positions. As this trend has continued, more questions of educational policy have become legal questions as well (see Section 1.7). Law and litigation have extended into every corner of campus activity.¹

There are many striking examples of cutting-edge (and sometimes just wrong-headed) cases that have attracted considerable attention in higher education circles or have had a substantial impact on higher education. Students have sued their institutions for damages after being accused of plagiarism or cheating or after being penalized for improper use of a campus computer network; objecting students have sued over mandatory student fee allocations; victims of harassment have sued their institutions and professors alleged to be harassers; student athletes have sought injunctions ordering their institutions or athletic conferences to grant or reinstate eligibility for intercollegiate sports; disabled students have filed suits against their institutions or state rehabilitation agencies, seeking accommodations to support their education; students who have been victims of violence have sued their institutions for alleged failures of campus security; hazing victims have sued fraternities, fraternity members, and institutions; parents have sued administrators and institutions after students have committed suicide; and former students involved in bankruptcy proceedings have sought judicial discharge of student loan debts owed to institutions. Disappointed students have challenged their grades in court, such as the student who filed suit in 2007 claiming that being required to type led to his receiving a lower grade because he typed more slowly than other students, or the student who fell asleep during an exam and claimed that she was unfairly penalized on the basis of a disability. Students and others supporting animal rights have used lawsuits (and civil disobedience as well) to pressure research laboratories to reduce or eliminate the use of animals. And another student, injured in a Jell-O wrestling event at a college residence hall party that he himself had organized, attempted to pin liability on his university.

Faculty members have been similarly active. Professors have sought legal redress after their institutions changed the professors’ laboratory or office space, their teaching assignments, or the size of their classes or after research data or curricular materials were discarded when a faculty member’s office was relocated. A group of faculty challenged their institution’s decision to terminate several women’s studies courses, alleging sex discrimination and violation of free speech. Female coaches have sued over salaries and support for women’s teams. Across the country, suits brought by faculty members who have been denied tenure—once one of the most closely guarded and sacrosanct of all institutional judgments—have become commonplace.

Outside parties also have been increasingly involved in postsecondary education litigation. Athletic conferences have been named as defendants in student athlete cases. Universities have sued sporting goods companies for trademark infringement because they allegedly appropriated university insignia and emblems for use on their products. Broadcasting companies and athletic conferences have been in litigation over rights to control television broadcasts of intercollegiate athletic contests, and athletic conferences have been in disputes concerning teams’ leaving one conference to join another. Media organizations have brought suits and other complaints under laws requiring open meetings and public records. Advocacy organizations may fund litigation by students or faculty against institutions; the Foundation for Individual Rights in Education (FIRE) and the Alliance Defense Fund are just two examples of such advocacy groups. Separate entities created by or affiliated with institutions have been involved in litigation with the institutions. Drug companies have sued and been sued in disputes over human subjects research and patent rights to discoveries. And increasingly, other commercial and industrial entities of various types have engaged in litigation with institutions regarding purchases, sales, and research ventures. Community groups, environmental organizations, taxpayers, and other outsiders have also gotten into the act, suing institutions for a wide variety of reasons, from curriculum to land use. Recipients of university services have also resorted to the courts. In 2009, clients of a university’s Center for Reproductive Health sued the university when the center gave fertilized embryos to unrelated couples without the consent of the parents of the embryos; another institution was sued for alleged mishandling of the cremated remains of a cadaver donated to the university’s research program.

More recently, other societal developments have led to new types of lawsuits and new issues for legal planning. And, of course, myriad government agencies at federal, state, and local levels have frequently been involved in civil suits as well as criminal prosecutions concerning higher education. Drug abuse problems have spawned legal issues, especially those concerning mandatory drug testing of employees or student athletes and compliance with drug-free campus laws. Federal government regulation of Internet communications has led to new questions about liability for the spread of computer viruses, copyright infringement in cyberspace, transmission of sexually explicit materials, and defamation by cyberspeech. Outbreaks of racial, anti-Semitic, anti-Arab, homophobic, and political and ideological tensions on campuses have led to speech codes, academic bills of rights, and the eruption of a range of issues concerning student and faculty academic freedom. Initiatives to strengthen women’s teams, prompted by alleged sex-based inequities in intercollegiate athletics, have led to suits by male athletes and coaches whose teams have been eliminated or downsized. Sexual harassment concerns have grown to include student peer harassment and harassment based on sexual orientation, as well as date rape and sexual assault. Hazing, alcohol use, and behavioral problems, implicating fraternities and men’s athletic teams especially, have reemerged as major issues. New emphasis on conflicts between civil law and canon law and between religious mission and governmental authority has resulted in disputes concerning the legal rights of students and faculty at religiously affiliated institutions and also concerning government funding for religious institutions and their students. In the realm of research, numerous issues concerning scientific misconduct, research on human subjects, bioterrorism research, patent rights, and conflicts of interest have emerged. Issues affecting student government and extracurricular student activities arose in the wake of the U.S. Supreme Court’s ruling on mandatory student activity fees in the Rosenberger case (see Section 8.1.4). The development of more relationships between research universities and private industry has led to more legal issues concerning technology transfer. Heightened sensitivities to alleged sexual harassment and political bias in academia have prompted disputes between faculty and students over academic freedom, manifested especially in student complaints about faculty members’ classroom comments and course assignments. Increased attention to student learning disabilities and to psychological and emotional conditions that may interfere with learning has led to new types of disability discrimination claims and issues concerning the modification of academic standards. Renewed attention to affirmative action policies for admissions and financial aid has resulted in lawsuits, state legislation, and state referenda and initiative drives among voters. Disputes persist on campus concerning student organizations that promote gay rights, student religious organizations that exclude gay and lesbian students from membership or leadership, and the rights and concerns of transgender students.

As the number and variety of disputes have increased, the use of administrative agencies as alternative forums for airing disputes has grown alongside litigation in court. In some circumstances, especially at the federal level, the courts (and particularly the U.S. Supreme Court) have imposed various technical limitations on access to courts, redirecting complainants to administrative agencies as an alternative. Administrative agency regulations at federal, state, and local levels may now routinely be enforced through agency compliance proceedings and private complaints filed with administrative agencies. Thus, postsecondary institutions may find themselves before the federal Equal Employment Opportunity Commission or an analogous state agency; the National Labor Relations Board or a state’s public employee relations board; the administrative law judges of the U.S. Department of Education; contract dispute boards of federal and state contracting agencies; state workers’ compensation and unemployment insurance boards; state licensing boards; state civil service commissions; the boards or officers of federal, state, and local taxing authorities; local zoning boards; or mediators or arbitrators of various agencies at all levels of government. Proceedings can be complex (mediation is usually an exception), and the legal relief that agencies may provide to complainants or to institutions can be substantial.

Paralleling these administrative developments has been an increase in the internal forums created by postsecondary institutions for their own use in resolving disputes. Faculty and staff grievance committees, processes for appealing denials of promotion or tenure, student judiciaries, honor boards, and grade appeals panels are common examples. In recent years, mediation has assumed a major role in some of these processes. In addition to such internal forums, private organizations and associations involved in postsecondary governance have given increased attention to their own dispute resolution mechanisms. Thus, besides appearing before courts and administrative agencies, postsecondary institutions may become involved in grievance procedures of faculty and staff unions, hearings of accrediting agencies on the accreditation status of institutional programs, probation hearings of athletic conferences, and censure proceedings of the American Association of University Professors.

Of course, some counter-trends have emerged over time that have served to ameliorate the more negative aspects of the greater role of law and litigiousness in academia. The alternative dispute resolution (ADR) movement in society generally has led to the use of mediation and other constructive mechanisms for the internal resolution of campus disputes (see Section 2.3 of this book). Colleges and universities have increased their commitments to and capabilities for risk management and preventive legal planning. On a broader scale, not only institutions but also their officers have increasingly banded together in associations to maximize their influence on the development of legislation and agency regulations affecting postsecondary education. These associations also facilitate the sharing of strategies and resources for managing campus affairs in ways that minimize legal problems. Government agencies have developed processes for notice and comment prior to implementing regulations, for negotiated rule making, and for mediation of disputes. The trial courts have developed processes for pretrial mediation, and the appellate courts, including the U.S. Supreme Court, have developed a concept of judicial deference or academic deference that is used by both trial and appellate courts to limit judicial intrusion into the genuinely academic decisions of postsecondary institutions.

The breadth and scope of litigation involving higher education institutions suggest that it will be difficult, if not impossible, to return to the days when colleges were above the fray of litigation. Stakeholders—faculty, staff, students, parents, alumni, donors, and others—seem unwilling to accept negative decisions or outcomes and evidently feel compelled to challenge them through regulatory agencies or in court. Given this reality, an increasing proportion of institutional resources must be allocated to respond to these legal challenges.

Administrators, counsel, public policy makers, and scholars have all reflected on the role of law on campus. While the influence of law is frequently criticized, this criticism is becoming more perceptive and more balanced. It is still often asserted that the law reaches too far and speaks too loudly. Especially because of the courts’ and federal government’s involvement, it is said that legal proceedings and compliance with legal requirements are too costly, not only in monetary terms but also in terms of the talents and energies expended; that they divert higher education from its primary mission of teaching and scholarship; and that they erode the integrity of campus decision making by bending it to real or perceived legal technicalities that are not always in the academic community’s best interests. It is increasingly recognized, however, that such criticisms—although highlighting pressing issues for higher education’s future—do not acknowledge all sides of these issues. We cannot evaluate the role of law on campus by looking only at dollars expended, hours of time logged, pages of compliance reports completed, or numbers of legal proceedings participated in. We must also consider a number of less quantifiable questions: Are legal claims made against institutions, faculty, or staff usually frivolous or unimportant, or are they sometimes justified? Are institutions providing effective mechanisms for dealing with claims and complaints internally, thus helping themselves avoid any negative effects of outside legal proceedings? Are the courts and counsel for colleges and universities doing an adequate job of sorting out frivolous from justifiable claims and of developing means for summary disposition of frivolous claims and settlement of justifiable ones? Have administrators and counsel ensured that their legal houses are in order by engaging in effective preventive planning? Are courts being sensitive to the mission of higher education when they apply legal rules to campuses and when they devise remedies in suits lost by institutions? Do government regulations for higher education implement worthy policy goals, and are they adequately sensitive to the mission of higher education? In situations where the message of the law has appeared to conflict with the best interests of academia, how has academia responded? Has the inclination been to kill the messenger or to develop more positive remedies—to hide behind rhetoric or to forthrightly document and defend the interests of higher education?

We still do not know all we should about these questions. But we know that they are clearly a critical counterpoint to questions about money, time, and energy expended. We must have insight into both sets of questions before we can fully judge law’s impact on the campus—before we can know, in particular situations, whether law is more a beacon or a blanket of ground fog.

Section 1.2. Evolution of Higher Education Law

Throughout the nineteenth and much of the twentieth centuries, the law’s relationship to higher education was very different from what it is now. There were few legal requirements relating to the educational administrator’s functions, and these requirements were not a major factor in most administrative decisions. Those in the higher education world, moreover, tended to think of themselves as removed from and perhaps