Law of Higher Education, 2 Volume Set

William A. Kaplin is Professor of Law Emeritus at the Catholic University of America in Washington, DC, where he also served for many years as Special Counsel to the Office of General Counsel. He is the former editor of the Journal of College and University Law. Professor Kaplin received the American Council on Education’s Borden Award, in recognition of the First Edition of The Law of Higher Education. He has also been honored through Stetson University's establishment of the William A. Kaplin Award for Excellence in Higher Education Law and Policy Scholarship, a national award presented annually to a leading scholar in the field.Barbara A. Lee is Senior Vice President for Academic Affairs at Rutgers, The State University of New Jersey, and Distinguished Professor of Human Resource Management. She is a former Dean of the School of Management and Labor Relations, and also served as associate provost, department chair, and Director of the Center for Women and Work at Rutgers. She chaired the editorial board of the Journal of College and University Law and is a Fellow of the National Association of College and University Attorneys. She received the Daniel Gorenstein Award from Rutgers University in 2009 for distinguished contributions to scholarship and service. In addition to co-authoring multiple editions of The Law of Higher Education, The Law of Higher Education-Student Version, and A Legal Guide for Student Affairs Professionals, she co-authored, with George LaNoue, Academics in Court. She has published over 100 books and articles on higher education legal topics, and serves as an expert witness in tenure, discharge, and discrimination cases, as well as a frequent lecturer and trainer for academic and corporate audiences.Barbara Lee received her B.A. degree, summa cum laude, from the University of Vermont, her M.A. in English and Ph.D. in higher education administration, and her J.D., cum laude, from the Georgetown University Law Center.Neal H. Hutchens serves as Professor and Chair in the University of Mississippi School of Education's Department of Higher Education. He previously held a faculty appointment at Penn State University. A key strand of his scholarship is centered on free speech and academic freedom issues in higher education. Hutchens was the 2015 recipient of the William A. Kaplin Award from the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law. He is on the editorial board for The Review of Higher Education and for Education Law & Policy Review and is a member of the authors' committee for West's Education Law Reporter. He also serves on the Litigation Committee for the American Association of University Professors and is a past board member of the Education Law Association.Jacob H. Rooksby is Dean and Professor in the School of Law at Gonzaga University, where he also holds a joint appointment in the School of Education. Prior to joining Gonzaga, Rooksby was Associate Dean and Associate Professor at Duquesne University School of Law. Rooksby's scholarship lies in two fields: intellectual property law and higher education law. Johns Hopkins University Press published his book, The Branding of the American Mind: How Universities Capture, Manage, and Monetize Intellectual Property and Why It Matters, in 2016. Rooksby writes a regular column for Campus Legal Advisor and has published his work in Harvard Journal of Law & Technology, Yale Journal of Law & Technology, and the Chronicle of Higher Education, among other outlets. Rooksby holds J.D., M.Ed., and Ph.D. degrees from the University of Virginia and an undergraduate degree, summa cum laude, from the College of William & Mary. He formerly practiced law with McGuireWoods LLP and Cohen & Grigsby, P.C.

• Notice to Instructors vNotice of Website and Periodic Updates for the Sixth Edition viPreface xxixAcknowledgments xxxixThe Authors xliPart One Perspectives and Foundations 11. Overview of Higher Education Law 3Section 1.1. How Far the Law Reaches and How Loudly It Speaks 3Section 1.2. Evolution of Higher Education Law 10Section 1.3. The Governance of Higher Education 26Section 1.4. Sources of Higher Education Law 34Section 1.5. The Public-Private Dichotomy 48Section 1.6. Religion and the Public-Private Dichotomy 69Section 1.7. The Relationship Between Law and Policy 95Selected Annotated Bibliography 1012. Legal Planning and Dispute Resolution 113Section 2.1. Legal Liability 113Section 2.2. Litigation in the Courts 116Section 2.3. Alternative Dispute Resolution 163Section 2.4. Legal Services 171Section 2.5. Institutional Management of Liability Risk 182Selected Annotated Bibliography 194Part Two The College and Its Governing Board, Personnel, and Agents 2013. The College and Its Trustees and Officers 203Section 3.1. The Question of Authority 203Section 3.2. Sources and Scope of Authority and Liability 208Section 3.3. Institutional Tort Liability 228Section 3.4. Institutional Contract Liability 278Section 3.5. Institutional Liability for Violating Federal Constitutional Rights ( 1983 Liability) 285Section 3.6. Captive and Affiliated Organizations 297Selected Annotated Bibliography 3074. The College and Its Employees 313Section 4.1. Overview of Employment Relationships 313Section 4.2. Pre-hire Considerations 316Section 4.3. Employment Contracts 322Section 4.4. Civil Service Rules 340Section 4.5. Collective Bargaining 342Section 4.6. Other Employee Protections 377Section 4.7. Personal Liability of Employees 421Section 4.8. Performance Management Issues 450Selected Annotated Bibliography 4595. Nondiscrimination and Affirmative Action in Employment 464Section 5.1. The Interplay of Statutes, Regulations, and Constitutional Protections 464Section 5.2. Sources of Law 470Section 5.3. The Protected Classes 510Section 5.4. Affirmative Action 555Selected Annotated Bibliography 577Part Three The College and Its Faculty 5836. Faculty Employment Issues 585Section 6.1. Overview 585Section 6.2. Faculty Contracts 585Section 6.3. Faculty Collective Bargaining 613Section 6.4. Application of Nondiscrimination Laws to Faculty Employment Decisions 625Section 6.5. Affirmative Action in Faculty Employment Decisions 656Section 6.6. Standards and Criteria for Faculty Personnel Decisions 663Section 6.7. Procedures for Faculty Employment Decisions 681Section 6.8. Closure, Merger, and Reduction in Force 722Selected Annotated Bibliography 7417. Faculty Academic Freedom and Freedom of Expression 747Section 7.1. General Concepts and Principles 747Section 7.2. Academic Freedom in Teaching 790Section 7.3. Academic Freedom in Research and Publication 826Section 7.4. Academic Freedom in Institutional Affairs 838Section 7.5. Academic Freedom in Private Life 861Section 7.6. Administrators’ Authority Regarding Faculty Academic Freedom and Freedom of Expression 870Section 7.7. Protection of Confidential Academic Information: The “Academic Freedom Privilege” 878Section 7.8. Academic Freedom in Religious Colleges and Universities 896Selected Annotated Bibliography 899Part Four The College and Its Students 9098. The Student-Institution Relationship 911Section 8.1. The Legal Status of Students 911Section 8.2. Admissions 946Section 8.3. Financial Aid 1013Section 8.4. Student Housing 1068Section 8.5. Campus Computer Networks 1089Section 8.6. Campus Security 1105Section 8.7. Other Support Services 1121Section 8.8. Student Records 1136Selected Annotated Bibliography 11569. Student Academic Issues 1165Section 9.1. Overview 1165Section 9.2. Grading and Academic Standards 1166Section 9.3. Online Programs 1178Section 9.4. Academic Accommodations for Students with Disabilities 1186Section 9.5. Sexual Harassment of Students by Faculty Members 1210Section 9.6. Academic Dismissals and Other Academic Sanctions 1233Section 9.7. Degree Revocation 1260Selected Annotated Bibliography 126510. Student Disciplinary Issues 1269Section 10.1. Disciplinary and Grievance Systems 1269Section 10.2. Disciplinary Rules and Regulations 1287Section 10.3. Procedures for Suspension, Dismissal, and Other Sanctions 1298Section 10.4. Student Protests and Freedom of Speech 1318Section 10.5. Speech Codes and the Problem of Hate Speech 1349Selected Annotated Bibliography 136411. Rights and Responsibilities of Student Organizations and Their Members 1372Section 11.1. Student Organizations 1372Section 11.2. Fraternities and Sororities 1413Section 11.3. The Student Press 1437Section 11.4. Athletic Teams and Clubs 1460Selected Annotated Bibliography 1509Part Five The College and Local, State, and Federal Governments 151712. Local Governments and the Local Community 1519Section 12.1. General Principles 1519Section 12.2. Zoning and Land Use Regulation 1524Section 12.3. Local Government Taxation 1543Section 12.4. Student Voting in the Community 1561Section 12.5. Relations with Local Police 1569Section 12.6. Community Access to the College’s Campus 1574Section 12.7. Community Activities of Faculty Members and Students 1604Selected Annotated Bibliography 161013. The College and State Government 1614Section 13.1. Overview 1614Section 13.2. State Provision of Public Postsecondary Education 1619Section 13.3. State Chartering and Licensure of Private Postsecondary Institutions 1627Section 13.4. State Regulation of Out-of-State Institutions and Programs 1640Section 13.5. Other State Regulatory Laws Affecting Postsecondary Education Programs 1647Selected Annotated Bibliography 167914. The College and the Federal Government 1684Section 14.2. Federal Regulation of Postsecondary Education 1702Section 14.3. Federal Taxation of Postsecondary Education 1826Section 14.4. Federal Aid-to-Education Programs 1848Section 14.5. Civil Rights Compliance 1873Section 14.6. Dealing with the Federal Government 1939Selected Annotated Bibliography 1947Part Six The College and External Private Entities 196315. The College and the Education Associations 1965Section 15.1. Overview of the Education Associations 1965Section 15.2. Applicable Legal Principles 1969Section 15.3. The College and the Accrediting Agencies 1971Section 15.4. Athletic Associations and Conferences 2006Section 15.5. The American Association of University Professors 2028Section 15.6. Dealing with the Education Associations 2031Selected Annotated Bibliography 203216. The College and the Business and Industrial Community 2039Section 16.1. The Contract Context for College Business Transactions 2039Section 16.2. The College as Purchaser 2048Section 16.3. The College as Seller and Competitor 2069Section 16.4. The College as Research Collaborator and Partner 2095Selected Annotated Bibliography 2120Statute Index 2127Case Index 2147Subject Index 2195