Overview of the Sixth 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 violate the code of student conduct in some other way. 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 websites. 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 Sixth Edition and Earlier Editions

This sixth edition of The Law of Higher Education is the successor to the fifth edition, published in 2013, and the updates posted on the website of the National Association of College and University Attorneys periodically after the publication of the fifth edition. The sixth edition features a thoroughly revised, updated, and expanded text. This edition is current to approximately June 2018, but also occasionally references developments from later in that year.

In the years since publication of the fifth edition and then its updates, many new and newly complex legal concerns have arisen on U.S. campuses—from the use (and abuse) of the internet in student life, teaching and learning, and communications generally. Conflict about affirmative action in admissions continues, despite guidance from the U.S. Supreme Court. Arguments over “hate speech” and the boundaries of free speech and academic freedom have intensified on campus, and U.S. immigration policy has affected many current and prospective students. 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 sixth edition retains all material of continuing legal currency from the fifth edition and the updates, 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 updates. 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 earlier 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 sixth edition covers all of nonprofit 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 sixth edition also covers proprietary (for-profit) institutions in situations where they are treated differently from nonprofits (e.g., state licensure of postsecondary institutions and programs), and in other areas of particular interest to proprietary institutions (e.g., distance learning).

The sixth 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 sixth 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 international 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 sixth 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 sixth edition into sixteen chapters. 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

The most obvious new development in this book is the addition of two new coauthors. Neal H. Hutchens and Jacob H. Rooksby have signed on as coauthors and are full partners in the updating and revising of The Law of Higher Education, sixth edition.

Neal is a Professor of Higher Education and Chair of the Department of Higher Education at the University of Mississippi. Neal received his Ph.D. in education policy with a specialization in higher education from the University of Maryland, and his J.D. from the University of Alabama (see his bio on p. xliii for additional information about Neal). Jacob H. Rooksby is Professor of Law and Dean of the Gonzaga University School of Law. Jacob received his M.Ed., Ph.D. and J.D. at the University of Virginia. More about Jacob can be found on p. xliii.

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 sixth edition adds discussion of Title IX litigation related to sexual assault, legal rights of transgender faculty, staff and students, and new developments in the “special relationship” doctrine and student suicide. The religious rights of religious institutions are reconsidered in light of the U.S. Supreme Court's decision in Trinity Lutheran Church.

Other sections from the fifth edition have been expanded, reconceptualized and reorganized as well as updated: all material involving Title IX of the Education Amendments, previously discussed in sections 8.1.5 and 14.5.3, is now consolidated in section 14.5.3. Cases involving faculty academic freedom and free speech rights have been added to Chapter 7, as well as legal implications of the recent restrictions on travel to the United States and from the U.S. to Cuba proposed by the Trump administration. The discussion about dismissals of students for alleged violations of professional ethics or behavior standards in Section 9.6.3 has been expanded, as well as cases involving online speech. Section 11.4.3's analysis of the speech rights of student athletes, including the monitoring of their speech on social media, has also been expanded and updated. New cases and analysis of legal regulation of campus computer networks appears in a revised and expanded Section 14.2.12. New state laws related to student protests are discussed in Section 10.4, and developments in state laws regarding campus carry gun laws are addressed in Section 13.5.6. We have also updated the book's coverage in complex areas that have changed substantially since the fifth edition, like intellectual property, taxation, and Medicare.

Citations and References

Each chapter ends with a Selected Annotated Bibliography. We suggest that readers use the listed books, articles, reports, websites, 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 sixth edition generally follows The Bluebook: A Uniform System of Citation (20th ed., Columbia Law Review Association, Harvard Law Review Association, University of Pennsylvania Law Review, and Yale Law Journal, 2015). The legal sources that these citations refer to are described in Section 1.4 of this book.

A Note on Nomenclature

The sixth 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 the federal government or 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 five editions. We reemphasize them here for the sixth 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 website, hosted by the National Association of College and University Attorneys (NACUA), Washington, D.C. (available at http://www.nacua.org), on which we announce or post pertinent new developments and key them to the sixth edition. In addition, there is a very helpful website, 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, which publishes 40 issues per year, 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 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 Higher Ed, 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/journal/10.1111/(ISSN)2150-1092). 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 twice 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.

The overall goal for this sixth 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.