Higher Education Law

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.

Contents

Preface

About the Authors






Nature of Law
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




Legal Structure of Higher Education
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




Religion
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




Student Fees and Tuition
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




Students and Parietal Rules: Living and Learning
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




Contractual Relationship Between Student and University
Introduction

Contracts

Contract Law Applied to the Universities

Summation of Law

Questions and Issues for Discussion

Research Aids




Student Dismissals and Procedural Due Process of Law
Introduction

Two Aspects of Due Process

Procedural Due Process

Summation of Law

Questions and Issues for Discussion

Research Aids




Substantive Due Process: Liberty and Property Interests of Students in Grading and Dismissals
Introduction

Substantive Due Process Explained

Judicial Deference to Academic Decisions

Summation of Law

Questions and Issues for Discussion

Research Aids




Student Speech, Expression, and Association
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




Free Speech and Electronic Communication
Introduction

Forum Analysis and the Internet

Unprotected Electronic Speech

When the Forum Analysis Applies

Summation of Law

Questions and Issues for Discussion

Research Aids




Student Press
Introduction

Background

Press Suppression

Pre-Hazelwood

Recent Era and Forum Analysis

Heresy and Blasphemy

Summation of Law

Questions and Issues for Discussion

Research Aids




Search and Seizure
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




Academic Freedom
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




Faculty Contracts, Tenure, and Collective Bargaining
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




Faculty and Due Process of Law
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




Speech in Public Institutions

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