The Supplement to A Legal Guide for Student Affairs Professionals

WILLIAM A. KAPLIN is professor of law emeritus at The Catholic University of America, Washington, DC, where he also served as special counsel to the Office of General Counsel. He is now senior fellow at the Center for Excellence in Higher Education Law and Policy, Stetson University College of Law. BARBARA A. LEE is professor of human resource management at Rutgers University s School of Management and Labor Relations and of counsel to the law firm of Edwards Wildman Palmer. An attorney, she teaches employment law and higher education law. Together they are the authors of The Law of Higher Education, now in its fifth edition.

Notice of Web Site and Periodic Supplements v
Preface xiii
Acknowledgments xv
About the Authors xvii
PART ONE PERSPECTIVES AND FOUNDATIONS.
1. Overview of Higher Education Law 1
1.3 The Governance of Higher Education 1
1.3.1 Basic concepts and distinctions 1
1.3.3 External governance 1
1.4 Sources of Higher Education Law 2
1.4.2 External sources of law 2
1.5 The Public–Private Dichotomy 2
1.5.2 The state action doctrine 2
1.6 Religion and the Public–Private Dichotomy 3
1.6.3 Governmental support for religious institutions 3
1.6.4 Religious autonomy rights of individuals in public postsecondary institutions 7
Selected Annotated Bibliography 9
2. Legal Planning and Dispute Resolution 10
2.2 Litigation in the Courts 10
2.2.3 Judicial (academic) deference 10
2.4 Institutional Management of Liability Risk 10
2.4.1 Overview and suggestions 10
Selected Annotated Bibliography 11
PART TWO THE COLLEGE, ITS GOVERNING BOARD, AND ITS EMPLOYEES.
3. The College and Its Trustees 12
3.1 The Question of Authority 12
3.1.1 Overview 12
3.1.2 Trustee authority 12
3.2 Institutional Tort Liability 13
3.2.1 Overview 13
3.2.2 Negligence 13
3.2.2.4 Liability for cocurricular and social activities 14
3.2.2.5 Student suicide 14
3.2.3 Educational malpractice 16
3.4 Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability) 16
Selected Annotated Bibliography 16
4. The College and Its Employees 18
4.2 Employment Contracts 18
4.2.3 Coaches contracts (new section) 18
4.3 Collective Bargaining 19
4.3.3 Collective bargaining and antidiscrimination laws 19
4.4 Personal Liability of Employees 20
4.4.2 Tort liability 20
4.4.4 Constitutional liability (personal liability under Section 1983) 21
4.4.4.1 Qualifi ed immunity 21
4.4.4.2 Issues on the merits: State–created dangers 21
4.5 Employment Discrimination 21
4.5.2 Sources of law 21
4.5.2.1 Title VII 21
4.5.2.2 Equal Pay Act 24
4.5.2.5 Americans with Disabilities Act and Rehabilitation Act of 1973 25
4.5.2.6 Age Discrimination in Employment Act 26
4.5.2.7 Genetic Information Nondiscrimination Act (new subsection) 28
4.5.2.8 Constitutional prohibitions against employment discrimination 28
4.5.2.11 Transgender (new subsection) 29
4.7 Application of Nondiscrimination Laws to Religious Institutions 29
4.8 Faculty Academic Freedom and Freedom of Expression 30
4.8.1 General concepts and principles 30
4.8.1.1 Faculty freedom of expression in general 30
4.8.1.6 Institutional academic freedom 31
4.8.2 Academic freedom in teaching 33
4.8.2.1 In general 33
4.8.2.2 The classroom 34
Selected Annotated Bibliography 35
PART THREE THE COLLEGE AND ITS STUDENTS.
5. The Legal Status of Students 37
5.2 The Contractual Rights of Students 37
5.3 Student Academic Freedom 40
5.4 Students Legal Relationships with Other Students 41
5.5 Student Files and Records 42
5.5.1 Family Educational Rights and Privacy Act (FERPA) 42
5.5.2 State law 43
Selected Annotated Bibliography 44
6. Admissions and Financial Aid 45
6.1 Admissions 45
6.1.1 Basic legal requirements 45
6.1.4 The principle of nondiscrimination 46
6.1.4.1 Race 46
6.1.4.2 Sex 46
6.1.4.3 Disability 47
6.1.4.4 Immigration status 47
6.1.5 Affi rmative action programs 47
6.2 Financial Aid 48
6.2.1 General principles 48
6.2.2 Federal programs 48
6.2.4 Affi rmative action in fi nancial aid programs 51
6.2.5 Discrimination against nonresidents 51
6.2.6 Discrimination against aliens 52
6.2.6.2 Undocumented aliens 52
Selected Annotated Bibliography 53
7. The Campus Community 55
7.1 Student Housing 55
7.1.1 Housing regulations 55
7.1.2 Searches and seizures 57
7.2 Campus Computer Networks 58
7.2.1 Freedom of Speech 58
7.2.2 Liability issues 58
7.3 Campus Security 61
7.3.1 Security offi cers 61
7.3.2 Protecting students against violent crime 62
7.3.3 Federal statutes and campus security 63
7.4 Other Support Services 63
7.4.2 Health services 63
Selected Annotated Bibliography 63
8. Academic Policies and Concerns 65
8.2 Awarding of Grades and Degrees 65
8.3 Sexual Harassment of Students by Faculty Members 68
8.4 Evaluating Students with Disabilities 69
8.4.1 Overview 69
8.4.4 Requests for programmatic or instructional accommodations 70
9. The Disciplinary Process 72
9.1 Disciplinary and Grievance Systems 72
9.1.3 Codes of student conduct 72
9.1.4 Judicial systems 72
9.2 Disciplinary Rules and Regulations 73
9.2.2 Public institutions 73
9.2.4 Disciplining students with psychiatric illnesses 74
9.3 Procedures for Suspension, Dismissal, and Other Sanctions 74
9.3.2 Public institutions: Disciplinary sanctions 74
9.3.2.3 Hearing 74
9.3.3 Public institutions: The legal distinction between disciplinary sanctions and academic sanctions 75
Selected Annotated Bibliography 76
10. Students′ Freedom of Expression 77
10.1 Student Protests and Freedom of Speech 77
10.1.1 Student free speech in general 77
10.1.3 Regulation of student protest 77
10.2 Speech Codes and the Problem of Hate Speech 79
10.2.2 The case law on hate speech and speech codes 79
10.2.3 Guidelines for dealing with hate speech on campus 80
PART FOUR THE COLLEGE AND ITS STUDENT ORGANIZATIONS.
11. Student Organizations and Their Members 81
11.1 Student Organizations 81
11.1.4 Principle of nondiscrimination 81
11.2 Fraternities and Sororities 88
11.2.2 Institutional recognition and regulation of fraternal organizations 88
11.3 The Student Press 90
11.3.1 General principles 90
12. Athletics 93
12.3 Athletes Freedom of Speech 93
12.6 Sex Discrimination 93
Selected Annotated Bibliography 97
PART FIVE THE COLLEGE AND THE OUTSIDE WORLD.
13. Local and State Governments 98
13.1 Local Governments and the Local Community 98
13.1.2 Community access to the college s campus 98
13.1.2.2 Exclusion of speakers and events 98
13.1.2.3 Trespass statutes and ordinances, and related campus regulations 98
13.2 State Government 99
13.2.5 Open–records laws 99
13.2.7 Gun possession laws (new section) 100
14. The Federal Government 103
14.2 Copyright Law 103
14.2.2 The fair use doctrine 103
14.5 Americans with Disabilities Act 105
14.9 Civil Rights Compliance 105
14.9.1 General considerations 105
14.9.3 Title IX 106
15. Private Entities 108
15.2 Accrediting Agencies 108
15.3 Athletic Associations and Conferences 108
15.3.2 Federal constitutional constraints 108
15.3.4 Antitrust laws 109
Case Index 111
Statute Index 115
Subject Index 117