The Law of Higher Education, 2 Volume Set

Your must-have resource on the law of higher education

Written by recognized experts in the field, the latest edition of The Law of Higher Education offers college administrators, legal counsel, and researchers with the most up-to-date, comprehensive coverage of the legal implications of administrative decision making.

In the increasingly litigious environment of higher education, William A. Kaplin and Barbara A. Lee's clear, cogent, and contextualized legal guide proves more and more indispensable every year. Two new authors, Neal H. Hutchens and Jacob H Rooksby, have joined the Kaplin and Lee team to provide additional coverage of important developments in higher education law. From hate speech to student suicide, from intellectual property developments to issues involving FERPA, this comprehensive resource helps ensure you're ready for anything that may come your way.

• Includes new material since publication of the previous edition
• Covers Title IX developments and intellectual property
• Explores new protections for gay and transgender students and employees
• Delves into free speech rights of faculty and students in public universities
• Expands the discussion of faculty academic freedom, student academic freedom, and institutional academic freedom

If this book isn't on your shelf, it needs to be.

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 v

Notice of Website and Periodic Updates for the Sixth Edition vi

Preface xxix

Acknowledgments xxxix

The Authors xli

Part One Perspectives and Foundations 1

1. Overview of Higher Education Law 3

Section 1.1. How Far the Law Reaches and How Loudly It Speaks 3

Section 1.2. Evolution of Higher Education Law 10

Section 1.3. The Governance of Higher Education 26

Section 1.4. Sources of Higher Education Law 34

Section 1.5. The Public-Private Dichotomy 48

Section 1.6. Religion and the Public-Private Dichotomy 69

Section 1.7. The Relationship Between Law and Policy 95

Selected Annotated Bibliography 101

2. Legal Planning and Dispute Resolution 113

Section 2.1. Legal Liability 113

Section 2.2. Litigation in the Courts 116

Section 2.3. Alternative Dispute Resolution 163

Section 2.4. Legal Services 171

Section 2.5. Institutional Management of Liability Risk 182

Selected Annotated Bibliography 194

Part Two The College and Its Governing Board, Personnel, and Agents 201

3. The College and Its Trustees and Officers 203

Section 3.1. The Question of Authority 203

Section 3.2. Sources and Scope of Authority and Liability 208

Section 3.3. Institutional Tort Liability 228

Section 3.4. Institutional Contract Liability 278

Section 3.5. Institutional Liability for Violating Federal Constitutional Rights ( 1983 Liability) 285

Section 3.6. Captive and Affiliated Organizations 297

Selected Annotated Bibliography 307

4. The College and Its Employees 313

Section 4.1. Overview of Employment Relationships 313

Section 4.2. Pre-hire Considerations 316

Section 4.3. Employment Contracts 322

Section 4.4. Civil Service Rules 340

Section 4.5. Collective Bargaining 342

Section 4.6. Other Employee Protections 377

Section 4.7. Personal Liability of Employees 421

Section 4.8. Performance Management Issues 450

Selected Annotated Bibliography 459

5. Nondiscrimination and Affirmative Action in Employment 464

Section 5.1. The Interplay of Statutes, Regulations, and Constitutional Protections 464

Section 5.2. Sources of Law 470

Section 5.3. The Protected Classes 510

Section 5.4. Affirmative Action 555

Selected Annotated Bibliography 577

Part Three The College and Its Faculty 583

6. Faculty Employment Issues 585

Section 6.1. Overview 585

Section 6.2. Faculty Contracts 585

Section 6.3. Faculty Collective Bargaining 613

Section 6.4. Application of Nondiscrimination Laws to Faculty Employment Decisions 625

Section 6.5. Affirmative Action in Faculty Employment Decisions 656

Section 6.6. Standards and Criteria for Faculty Personnel Decisions 663

Section 6.7. Procedures for Faculty Employment Decisions 681

Section 6.8. Closure, Merger, and Reduction in Force 722

Selected Annotated Bibliography 741

7. Faculty Academic Freedom and Freedom of Expression 747

Section 7.1. General Concepts and Principles 747

Section 7.2. Academic Freedom in Teaching 790

Section 7.3. Academic Freedom in Research and Publication 826

Section 7.4. Academic Freedom in Institutional Affairs 838

Section 7.5. Academic Freedom in Private Life 861

Section 7.6. Administrators’ Authority Regarding Faculty Academic Freedom and Freedom of Expression 870

Section 7.7. Protection of Confidential Academic Information: The “Academic Freedom Privilege” 878

Section 7.8. Academic Freedom in Religious Colleges and Universities 896

Selected Annotated Bibliography 899

Part Four The College and Its Students 909

8. The Student-Institution Relationship 911

Section 8.1. The Legal Status of Students 911

Section 8.2. Admissions 946

Section 8.3. Financial Aid 1013

Section 8.4. Student Housing 1068

Section 8.5. Campus Computer Networks 1089

Section 8.6. Campus Security 1105

Section 8.7. Other Support Services 1121

Section 8.8. Student Records 1136

Selected Annotated Bibliography 1156

9. Student Academic Issues 1165

Section 9.1. Overview 1165

Section 9.2. Grading and Academic Standards 1166

Section 9.3. Online Programs 1178

Section 9.4. Academic Accommodations for Students with Disabilities 1186

Section 9.5. Sexual Harassment of Students by Faculty Members 1210

Section 9.6. Academic Dismissals and Other Academic Sanctions 1233

Section 9.7. Degree Revocation 1260

Selected Annotated Bibliography 1265

10. Student Disciplinary Issues 1269

Section 10.1. Disciplinary and Grievance Systems 1269

Section 10.2. Disciplinary Rules and Regulations 1287

Section 10.3. Procedures for Suspension, Dismissal, and Other Sanctions 1298

Section 10.4. Student Protests and Freedom of Speech 1318

Section 10.5. Speech Codes and the Problem of Hate Speech 1349

Selected Annotated Bibliography 1364

11. Rights and Responsibilities of Student Organizations and Their Members 1372

Section 11.1. Student Organizations 1372

Section 11.2. Fraternities and Sororities 1413

Section 11.3. The Student Press 1437

Section 11.4. Athletic Teams and Clubs 1460

Selected Annotated Bibliography 1509

Part Five The College and Local, State, and Federal Governments 1517

12. Local Governments and the Local Community 1519

Section 12.1. General Principles 1519

Section 12.2. Zoning and Land Use Regulation 1524

Section 12.3. Local Government Taxation 1543

Section 12.4. Student Voting in the Community 1561

Section 12.5. Relations with Local Police 1569

Section 12.6. Community Access to the College’s Campus 1574

Section 12.7. Community Activities of Faculty Members and Students 1604

Selected Annotated Bibliography 1610

13. The College and State Government 1614

Section 13.1. Overview 1614

Section 13.2. State Provision of Public Postsecondary Education 1619

Section 13.3. State Chartering and Licensure of Private Postsecondary Institutions 1627

Section 13.4. State Regulation of Out-of-State Institutions and Programs 1640

Section 13.5. Other State Regulatory Laws Affecting Postsecondary Education Programs 1647

Selected Annotated Bibliography 1679

14. The College and the Federal Government 1684

Section 14.2. Federal Regulation of Postsecondary Education 1702

Section 14.3. Federal Taxation of Postsecondary Education 1826

Section 14.4. Federal Aid-to-Education Programs 1848

Section 14.5. Civil Rights Compliance 1873

Section 14.6. Dealing with the Federal Government 1939

Selected Annotated Bibliography 1947

Part Six The College and External Private Entities 1963

15. The College and the Education Associations 1965

Section 15.1. Overview of the Education Associations 1965

Section 15.2. Applicable Legal Principles 1969

Section 15.3. The College and the Accrediting Agencies 1971

Section 15.4. Athletic Associations and Conferences 2006

Section 15.5. The American Association of University Professors 2028

Section 15.6. Dealing with the Education Associations 2031

Selected Annotated Bibliography 2032

16. The College and the Business and Industrial Community 2039

Section 16.1. The Contract Context for College Business Transactions 2039

Section 16.2. The College as Purchaser 2048

Section 16.3. The College as Seller and Competitor 2069

Section 16.4. The College as Research Collaborator and Partner 2095

Selected Annotated Bibliography 2120

Statute Index 2127

Case Index 2147

Subject Index 2195

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