Law of Higher Education

WILLIAM A. KAPLIN is Professor of Law Emeritus at the Columbus School of Law at Catholic University of America, where he also served as Special Counsel to the Office of General Counsel. BARBARA A. LEE is former Senior Vice President for Academic Affairs and a Distinguished University Professor of Human Resource Management at Rutgers University. NEAL H. HUTCHENS is Professor of higher education at the University of Kentucky. JACOB H. ROOKSBY is Dean and Professor of Law at Gonzaga University School of Law.

• Notice to Instructors vNotice of Website and Periodic Supplements for The Law of Higher Education viiPreface xxiAcknowledgments xxviiThe Authors xxixGeneral Introduction: The Study of Higher Education Law xxxiiiA. The Universe of Education Law xxxiiiB. The Governance of Higher Education xxxivC. Sources of Higher Education Law xxxvD. The Legal Relationships Within Institutions of Higher Education xxxviE. The Law/Policy Distinction xxxviiiF. The US Legal System as It Relates to Higher Education Law xxxixPart One Perspectives and Foundations 11. Overview of Higher Education Law 3Section 1.1. How Far the Law Reaches and How Loudly It Speaks 4Section 1.2. Evolution of Higher Education Law 9Section 1.3. The Governance of Higher Education 11Section 1.4. Sources of Higher Education Law 17Section 1.5. The Public-Private Dichotomy 26Section 1.6. Religion and the Public-Private Dichotomy 40Section 1.7. The Relationship Between Law and Policy 572. Legal Planning and Dispute Resolution 61Section 2.1. Legal Liability 61Section 2.2. Litigation in the Courts 66Section 2.3. Alternative Dispute Resolution 75Section 2.4. Institutional Management of Liability Risk 83Part Two The College and Its Governing Board and Staff 893. The College’s Authority and Liability 91Section 3.1. The Question of Authority 91Section 3.2. Institutional Tort Liability 96Section 3.3. Institutional Contract Liability 133Section 3.4. Institutional Liability for Violating Federal Constitutional Rights (Section 1983 Liability) 1384. The College and Its Employees 143Section 4.1. Overview of Employment Relationships 143Section 4.2. Employment Contracts 145Section 4.3. Collective Bargaining 147Section 4.4. Personal Liability of Employees 162Section 4.5. Employment Discrimination 178Section 4.6. Affirmative Action 219Section 4.7. Application of Nondiscrimination Laws to Religious Institutions 230Part Three The College and Its Faculty 2415. Special Issues in Faculty Employment 243Section 5.1. Overview 243Section 5.2. Faculty Contracts 244Section 5.3. Faculty Collective Bargaining 260Section 5.4. Application of Nondiscrimination Laws to Faculty Employment Decisions 266Section 5.5. Affirmative Action in Faculty Employment Decisions 275Section 5.6. Standards and Criteria for Faculty Personnel Decisions 279Section 5.7. Procedures for Faculty Employment Decisions 3136. Faculty Academic Freedom and Freedom of Expression 337Section 6.1. General Concepts and Principles 337Section 6.2. Academic Freedom in Teaching 365Section 6.3. Academic Freedom in Research and Publication 393Section 6.4. Academic Freedom in Religious Colleges and Universities 404Part Four The College And Its Students 4077. The Student-Institution Relationship 409Section 7.1. The Legal Status of Students 409Section 7.2. Admissions 440Section 7.3. Financial Aid 490Section 7.4. Student Housing 516Section 7.5. Campus Computer Networks 535Section 7.6. Campus Security 551Section 7.7. Other Support Services 565Section 7.8. Student Records 5718. Student Academic Issues 590Section 8.1. Overview 590Section 8.2. Grading and Academic Standards 591Section 8.3. Online Programs 600Section 8.4. Academic Accommodations for Students with Disabilities 603Section 8.5. Sexual Harassment of Students by Faculty Members 622Section 8.6. Academic Dismissals and Other Academic Sanctions 6439. Student Disciplinary Issues 664Section 9.1. Disciplinary and Grievance Systems 664Section 9.2. Disciplinary Rules and Regulations 677Section 9.3. Procedures for Suspension, Dismissal, and Other Sanctions 684Section 9.4. Student Protests and Freedom of Speech 702Section 9.5. Speech Codes and the Problem of Hate Speech 72710. Rights and Responsibilities of Student Organizations and Their Members 741Section 10.1. Student Organizations 741Section 10.2. Fraternities and Sororities 777Section 10.3. The Student Press 790Section 10.4. Athletic Teams and Clubs 809Part Five The College and the Outside World 85511. The College and Government 857Section 11.1. Local Government Regulation 857Section 11.2. State Government Regulation 874Section 11.3. Federal Government Regulation 889Section 11.4. Federal Aid-to-Education Programs 901Section 11.5. Civil Rights Compliance 90412. The College and External Private Entities 938Section 12.1. The Education Associations 938Section 12.2. Business Partners 947AppendicesA. Constitution of the United States of America: Provisions of Particular Interest to Postsecondary Education 957B. The American Court System 963C. Reading and Analyzing Court Opinions 967D. Glossary of Legal Terms 971Bibliography 981Statute Index 993Case Index 1003Subject Index 1029