Preface

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 they have legal implications as well. For example:

• A staff member may decide to become a whistleblower and assert that another college employee is violating the law. If the complaining staff member's performance has been problematic, and “just cause” exists for dismissal, may the college discharge the whistleblowing staff member?
• A tenured faculty member may have been accused of sexually harassing a student by requiring the student to complete a project that the student finds offensive. What standards and processes should be used to determine whether the faculty member should be discharged, disciplined, or reprimanded?
• 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 group of students petitions the administration to develop a “hate speech” code because they believe it will reduce the number of bias incidents on campus. Can a public institution enforce such a provision?
• A wealthy alumna may call the president and offer to make a multimillion dollar donation for a building to be named for a controversial political figure. Should the president accept the donation and follow the potential donor's wishes?

To assist college administrators and their counsel, and students and instructors who wish to study, research, or teach about issues such as these, and innumerable others, we have prepared this book. The Law of Higher Education: Essentials for Legal and Administrative Practice provides foundational information, in‐depth analysis, and practical suggestions on a wide array of legal issues faced by public and private institutions. The discussions draw on pertinent court opinions, constitutional provisions, statutes, administrative regulations, and related developments. In order to enhance readability and keep the book a manageable size, we have only occasionally included text or footnote citations to resources for further study and research, such as selected journal articles, books, and websites. We have, however, included a bibliography of such resources at the end of this book.

How the Book Was Developed

The precursor to this volume, The Law of Higher Education treatise, first published in 1978, has, for over five decades, discussed and analyzed many of the most salient legal issues facing colleges and universities. The law has changed substantially over those fifty‐odd years, and the law and many other developments have changed colleges and universities in ways too numerous to mention. At this point, nearly midway through the third decade of the twenty‐first century, we have decided to combine the book's original function as a treatise with an additional focus on preparing students of higher education law for current and future challenges as they provide legal advice to institutions of higher education or serve in an administrative role.

Guided by our own experiences in serving in academic leadership roles and in advising higher education clients over many years, we have selected the topics that we believe are of greatest importance and interest to higher education counsel, administrators, and students of higher education law and their instructors. We have given primary consideration to the significance of the topic for the development of higher education law and policy, the topic's currency or timelessness for administrators of colleges and universities and their legal counsel, and its usefulness in illustrating particular legal problems or the application of particular legal principles. The issues we have emphasized for each topic are usually ones that administrators and their legal advisors, faculty members, or students could encounter at virtually any institution of higher education in the country (or, sometimes, in the world). In developing these issues, we have focused not only on the applicable law but also on pertinent policy considerations and on implications for practice.

We had to make difficult choices about which topics to omit or to treat much less expansively than we would have liked (and they would have merited) in order to keep the book to a single volume. For example, we devoted considerable attention to institutional liability for tort claims, faculty employment issues, academic freedom, student affairs, and academic issues concerning students. However, we omitted many of the topics and discussions involving the employment of administrators and staff members. We also focused only briefly on government regulation of higher education, providing overviews of each level of government and illustrative examples of regulatory activities at each level. For the federal government, for example, we retained a brief discussion of federal copyright law and a discussion of federal civil rights laws (such as Title IX) prohibiting discrimination in programs that receive federal funding. Similarly, we focused briefly on legal and policy issues related to private educational associations, in particular the American Association of University Professors (AAUP), the accrediting agencies, and the intercollegiate athletics associations, and on college and university relationships with the business world—all of which could fill several chapters, if not another book. But we retained overviews and illustrative examples for each of these topics. We have updated the content from previous editions of The Law of Higher Education to account for the most important developments occurring as of the press deadline for this book. In addition, we have prepared study aids designed specifically for students of higher education law and their instructors, and integrated them into this book. These enhancements include the following:

• Introductory materials, titled “General Introduction: The Study of Higher Education Law,” that lay the foundation for, and facilitate the study of, the subject matter, and also include a section providing guidance for students who do not have background or training in the law
• An appendix (Appendix B) that provides an overview of the American system of courts and highlights key distinctions between federal and state courts, and between trial and appellate courts
• Another appendix (Appendix C) that provides practical guidelines for reading and analyzing judicial opinions
• Another appendix (Appendix D) that presents a glossary of legal terms used in this book
• Overviews at the beginning of chapters that introduce the topics and concepts to be addressed in each chapter
• Figures spread throughout the book that illustrate particular legal concepts and distinctions

In addition to these study aids that are incorporated into this book, we have also prepared a separate volume of edited cases and practice problems, which is available to instructors for distribution to students. (See “Notice to Instructors” in the front matter.)

As did previous versions of The Law of Higher Education, this book 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 to online learning as well. The book also reflects the same perspective as the earlier editions on the intersection of law and education. As described in the preface to the first edition:

Organization and Content of the Book

We have organized this book into twelve chapters. These chapters are in turn organized into five parts: (1) Perspectives and Foundations; (2) The College and Its Governing Board and Staff; (3) The College and Its Faculty; (4) The College and Its Students; and (5) The College and the Outside World. Each chapter is divided into numerous sections and subsections with their own titles.

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 10 develop the legal concepts and issues that define the internal relationships among the various members of the campus community and address the law's impact on particular roles, functions, and responsibilities of students, faculty members, and trustees and administrators. Chapter 11 is concerned with the postsecondary institution's external relationships with government at the federal, state, and local levels. This chapter examines broad questions of governmental power and process that cut across all the internal relationships and administrative functions considered in Chapters 3 through 10. Chapter 12 also deals with the institution's external relationships, but the relationships are those with the private sector rather than with government. This chapter explores the various national and regional education...