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.

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

• ContentsPrefaceAbout the Authors Nature of LawIntroductionSources of LawStare Decisis: The Doctrine of Judicial PrecedentThe Practical Application of Stare DecisisFunction of the CourtsStructure of the CourtsProcess of Going to CourtFinding the LawQuestions and Issues for DiscussionResearch Aids Legal Structure of Higher EducationIntroductionDefining the UniversityCollege and University CorporationsEssence of the Dartmouth College DecisionPublic UniversitiesThe Constitutionally Autonomous State UniversityState University as a Creature of the LegislatureState University as a Subordinate AgencySummation of LawQuestions and Issues for DiscussionResearch Aids ReligionIntroductionThe Ageless ConflictAmerican Antecedents to the First AmendmentMeaning of the Establishment ClauseThe Decline of the Establishment ClauseThe New Establishment Jurisprudence: Dismantling the WallHigher Education and the Establishment ClauseSupreme Court’s New Restraint on Taxpayer StandingState Constitutions and Religious FreedomState Constitutions and Aid to Sectarian CollegesTeaching Religion in State UniversitiesSummation of LawQuestions and Issues for DiscussionResearch Aids Student Fees and TuitionIntroductionEquity and TuitionIncidental FeesNonresident TuitionIrrebuttable PresumptionAlien StudentsSupremacy ClauseDefaults on Federal Student LoansSummation of LawQuestions and Issues for DiscussionResearch Aids Students and Parietal Rules: Living and LearningIntroduction Parietal RulesDebt Service on Construction BondsPower to Issue Revenue BondsRequired Residence of StudentsSummation of LawQuestions and Issues for DiscussionResearch Aids Contractual Relationship Between Student and UniversityIntroduction ContractsContract Law Applied to the UniversitiesSummation of LawQuestions and Issues for DiscussionResearch Aids Student Dismissals and Procedural Due Process of LawIntroductionTwo Aspects of Due ProcessProcedural Due ProcessSummation of LawQuestions and Issues for DiscussionResearch Aids Substantive Due Process: Liberty and Property Interests of Students in Grading and DismissalsIntroductionSubstantive Due Process ExplainedJudicial Deference to Academic Decisions Summation of LawQuestions and Issues for DiscussionResearch Aids Student Speech, Expression, and AssociationIntroductionClear and Present DangerLimits of Student FreedomOutside SpeakersMaterial and Substantial DisruptionForum AnalysisClosed Forum within University Open ForumTime, Place, and MannerStudent Association and Organizational RecognitionUnprotected SpeechTrue Threats and InternetConclusionSummation of LawQuestions and Issues for DiscussionResearch Aids Free Speech and Electronic CommunicationIntroductionForum Analysis and the InternetUnprotected Electronic SpeechWhen the Forum Analysis AppliesSummation of LawQuestions and Issues for DiscussionResearch Aids Student PressIntroductionBackgroundPress SuppressionPre-HazelwoodRecent Era and Forum AnalysisHeresy and BlasphemySummation of LawQuestions and Issues for DiscussionResearch Aids Search and SeizureIntroductionHistorical AntecedentsMeaning of the Fourth AmendmentSearch WarrantsExceptions to Warrant RequirementsExclusionary RuleTwo Types of SuspicionObjects of a SearchPlain View DoctrineSearches on CampusRecapitulationCell Phone SearchesSummation of LawQuestions and Issues for DiscussionResearch Aids Academic FreedomIntroductionIntellectual Freedom in EuropeSecular FreedomAcademic Freedom in the United StatesThree Types of Academic FreedomAcademic Freedom and Witch HuntsAcademic Freedom as Institutional AutonomyShared GovernanceAcademic Freedom in Church-Controlled UniversitiesLoyalty OathsPrivilege against Self-IncriminationSummation of LawQuestions and Issues for DiscussionResearch Aids Faculty Contracts, Tenure, and Collective BargainingIntroductionCommon Law ContractsBreach of ContractTenure ContractsReasons for Dismissal of Tenured FacultyCollective Bargaining ContractsPrivate University BargainingPublic University BargainingSummation of LawQuestions and Issues for DiscussionResearch Aids Faculty and Due Process of LawIntroductionFive Aspects of Due ProcessSubstantive Due ProcessProcedural Due ProcessImpartialityThe Vagueness DoctrineThe Irrationality and Presumption TestSummation of LawQuestions and Issue for DiscussionResearch Aids Speech in Public InstitutionsIntroductionPublic EmploymentSpeech Rights of Public EmployeesPickering and Matters of Public ConcernSpeech and the Connick RuleGarcetti and the "Pursuant to Duty" TestMt. Healthy and Motivating FactorsExpressing Public Concerns in PrivateSummation of LawQuestions and Issues for DiscussionResearch Aids17. Tort LiabilityIntroductionGrounds for ActionsIntentional InterferenceStrict LiabilityNegligenceElements of NegligenceDefenses for NegligenceSummation of LawQuestions and Issues for DiscussionResearch Aids18. Defamation, Student Records, and the Federal Family Education Rights and Privacy ActIntroductionDefamation LawFederal Law and Student RecordsFamily Education Rights and Privacy Act of 1974Summation of LawQuestions and Issues for DiscussionResearch Aids19. Immunity from Liability of State InstitutionsIntroductionBackground and RationaleSovereign Immunity in the United StatesExceptions to Immunity RuleNuisanceAbrogation of Common Law ImmunityEleventh Amendment ImmunitySummation of LawQuestions and Issues for DiscussionResearch Aids20. Liability and Immunity of Private InstitutionsIntroductionHistorical DevelopmentFour Theories of Charitable ImmunitySummation of LawQuestions and Issues for DiscussionResearch Aids21. State Action and Students at Private CollegesIntroductionStudents in the Private InstitutionState ActionEntwinementSummation of LawQuestions and Issues for DiscussionResearch Aids22. Civil Rights Statutes: Gender, Race and ReligionIntroductionGender Discrimination Sex or GenderEqual ProtectionExceedingly Persuasive JustificationEqual Pay ActTitle VIIRace and EmploymentReligionReligious Exemption from Title IXTitle IXRetaliationSummation of LawQuestions and Issues for DiscussionResearch Aids23. Racial Integration and DiversityIntroductionBackgroundSeparate but EqualPost-Civil War Civil Rights ActDefining Separate but EqualThe Brown CaseIntegration versus SegregationAffirmative Action to Remedy De Jure SegregationDiversity and Narrow TailoringDesegregation in Private InstitutionsSummation of LawQuestions and Issues for DiscussionResearch Aids24. Intellectual PropertyIntroductionIntellectual PropertyTrade SecretPatentsCopyrightTrademarksSummation of LawQuestions and Issues for DiscussionResearch Aids