2nd Edition
Higher Education Law Policy and Perspectives
This fully revised and updated textbook weaves law into its historical, political, and sociological context, while providing clear explanation of the law as it applies to American colleges and universities. This text draws exclusively on federal and state cases emerging from campuses and includes helpful pedagogical elements--such as chapter outlines, questions for discussion, side bars, text boxes, research aids, and summation of law--to equip readers with the tools and knowledge to effectively respond in an environment of increasing litigation. Addressing a gap in the literature, this new edition provides a comprehensive and accessible understanding of the latest laws relevant to higher education and student affairs administrators.
New In This Edition:
- Explanation and streamlining of old case law.
- New cases throughout covering recent developments in: student loan debt, student safety, Internet speech, affirmative action, discrimination, Greek life, issues relating to new technology, non-faculty employees, campus police, and athletics.
- Revised explanation on student and college costs.
- Expanded examination of the idea of academic freedom
Contents
Preface
About the Authors
- Nature of Law
- Legal Structure of Higher Education
- Religion
- Student Fees and Tuition
- Students and Parietal Rules: Living and Learning
- Contractual Relationship Between Student and University
- Student Dismissals and Procedural Due Process of Law
- Substantive Due Process: Liberty and Property Interests of Students in Grading and Dismissals
- Student Speech, Expression, and Association
- Free Speech and Electronic Communication
- Student Press
- Search and Seizure
- Academic Freedom
- Faculty Contracts, Tenure, and Collective Bargaining
- Faculty and Due Process of Law
- Speech in Public Institutions
Introduction
Sources of Law
Stare Decisis: The Doctrine of Judicial Precedent
The Practical Application of Stare Decisis
Function of the Courts
Structure of the Courts
Process of Going to Court
Finding the Law
Questions and Issues for Discussion
Research Aids
Introduction
Defining the University
College and University Corporations
Essence of the Dartmouth College Decision
Public Universities
The Constitutionally Autonomous State University
State University as a Creature of the Legislature
State University as a Subordinate Agency
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
The Ageless Conflict
American Antecedents to the First Amendment
Meaning of the Establishment Clause
The Decline of the Establishment Clause
The New Establishment Jurisprudence: Dismantling the Wall
Higher Education and the Establishment Clause
Supreme Court’s New Restraint on Taxpayer Standing
State Constitutions and Religious Freedom
State Constitutions and Aid to Sectarian Colleges
Teaching Religion in State Universities
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Equity and Tuition
Incidental Fees
Nonresident Tuition
Irrebuttable Presumption
Alien Students
Supremacy Clause
Defaults on Federal Student Loans
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Parietal Rules
Debt Service on Construction Bonds
Power to Issue Revenue Bonds
Required Residence of Students
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Contracts
Contract Law Applied to the Universities
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Two Aspects of Due Process
Procedural Due Process
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Substantive Due Process Explained
Judicial Deference to Academic Decisions
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Clear and Present Danger
Limits of Student Freedom
Outside Speakers
Material and Substantial Disruption
Forum Analysis
Closed Forum within University Open Forum
Time, Place, and Manner
Student Association and Organizational Recognition
Unprotected Speech
True Threats and Internet
Conclusion
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Forum Analysis and the Internet
Unprotected Electronic Speech
When the Forum Analysis Applies
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Background
Press Suppression
Pre-Hazelwood
Recent Era and Forum Analysis
Heresy and Blasphemy
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Historical Antecedents
Meaning of the Fourth Amendment
Search Warrants
Exceptions to Warrant Requirements
Exclusionary Rule
Two Types of Suspicion
Objects of a Search
Plain View Doctrine
Searches on Campus
Recapitulation
Cell Phone Searches
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Intellectual Freedom in Europe
Secular Freedom
Academic Freedom in the United States
Three Types of Academic Freedom
Academic Freedom and Witch Hunts
Academic Freedom as Institutional Autonomy
Shared Governance
Academic Freedom in Church-Controlled Universities
Loyalty Oaths
Privilege against Self-Incrimination
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Common Law Contracts
Breach of Contract
Tenure Contracts
Reasons for Dismissal of Tenured Faculty
Collective Bargaining Contracts
Private University Bargaining
Public University Bargaining
Summation of Law
Questions and Issues for Discussion
Research Aids
Introduction
Five Aspects of Due Process
Substantive Due Process
Procedural Due Process
Impartiality
The Vagueness Doctrine
The Irrationality and Presumption Test
Summation of Law
Questions and Issue for Discussion
Research Aids
Introduction
Public Employment
Speech Rights of Public Employees
Pickering and Matters of Public Concern
Speech and the Connick Rule
Garcetti and the "Pursuant to Duty" Test
Mt. Healthy and Motivating Factors
Expressing Public Concerns in Private
Summation of Law
Questions and Issues for Discussion
Research Aids
17. Tort Liability
Introduction
Grounds for Actions
Intentional Interference
Strict Liability
Negligence
Elements of Negligence
Defenses for Negligence
Summation of Law
Questions and Issues for Discussion
Research Aids
18. Defamation, Student Records, and the Federal Family Education Rights and Privacy Act
Introduction
Defamation Law
Federal Law and Student Records
Family Education Rights and Privacy Act of 1974
Summation of Law
Questions and Issues for Discussion
Research Aids
19. Immunity from Liability of State Institutions
Introduction
Background and Rationale
Sovereign Immunity in the United States
Exceptions to Immunity Rule
Nuisance
Abrogation of Common Law Immunity
Eleventh Amendment Immunity
Summation of Law
Questions and Issues for Discussion
Research Aids
20. Liability and Immunity of Private Institutions
Introduction
Historical Development
Four Theories of Charitable Immunity
Summation of Law
Questions and Issues for Discussion
Research Aids
21. State Action and Students at Private Colleges
Introduction
Students in the Private Institution
State Action
Entwinement
Summation of Law
Questions and Issues for Discussion
Research Aids
22. Civil Rights Statutes: Gender, Race and Religion
Introduction
Gender Discrimination
Sex or Gender
Equal Protection
Exceedingly Persuasive Justification
Equal Pay Act
Title VII
Race and Employment
Religion
Religious Exemption from Title IX
Title IX
Retaliation
Summation of Law
Questions and Issues for Discussion
Research Aids
23. Racial Integration and Diversity
Introduction
Background
Separate but Equal
Post-Civil War Civil Rights Act
Defining Separate but Equal
The Brown Case
Integration versus Segregation
Affirmative Action to Remedy De Jure Segregation
Diversity and Narrow Tailoring
Desegregation in Private Institutions
Summation of Law
Questions and Issues for Discussion
Research Aids
24. Intellectual Property
Introduction
Intellectual Property
Trade Secret
Patents
Copyright
Trademarks
Summation of Law
Questions and Issues for Discussion
Research Aids
Biography
Klinton W. Alexander is Dean and Professor of Law in the College of Law at the University of Wyoming, USA.
Kern Alexander is Excellence Professor at the University of Illinois, Urbana-Champaign, USA, and Editor of the Journal of Education Finance.
Praise for the previous edition:
"This trusty textbook is a necessity for anyone teaching, learning, or practicing higher education law today. Its attention to detail, history, and analysis is invaluable."
-Julie Underwood, Dean, School of Education, University of Wisconsin-Madison
"This book represents an extremely valuable resource to university administrators, attorneys, and anyone interested in higher education law. The book explains complex legal issues in clear terms and with very helpful analytical insights. The authors understand the practical range of issues and the law that affects all aspects of higher education. This book is a critical addition to the literature."
-Jon Mills, Dean Emeritus, Professor of Law, and Director of the Center for Governmental Responsibility, Frederic G. Levin College of Law, University of Florida
"Higher Education Law is a very high quality, well written, and well researched text. The continual use of specific case law provides context and the diversity of chapter topics covers all aspects of today’s modern university."
-Joseph M. Marron, Professor and Program Director, Higher Education Administration Graduate Program, National University
"The book is well organized and clear to understand for students who are first learning about higher education law."
-James Archibold, Professor of Higher Education Leadership, Valdosta State University
