The Law of Higher Education (Kaplan 4th) Chapter1


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  • The division between higher ed and K12 is one of distinct differences in funding and mission.The division between Public and Private is Fed and State Constitutional rights apply directly to Public institutions (and Public funds)Under the establishment clause of the first amendment public institutions must maintain a neutral stance regarding religious beliefs and activities.Private institutions are not subject to the same requirements.The division between Private Secular and Private Religious institutions exists because religious institutions have an extra measure of autonomy from govt regulations due to 1st amendment protections and limits their eligibility to receive govt support.
  • Governance refers to the structures and processes by which an institution operates. We will discuss this more in Slide 12.
  • Statute is a law enacted by the legislative branch.Regulation is a rule or order issued by an executive or regulative agency that has the rule of law.Common Law is a body of law that does not derive from a constitution, statutes, or regulations and instead derives from the cumulative decisions over time of the courts of the jurisdiction.
  • i.e. House mothersCivil suits such as negligence
  • Governance structures and processes provide the legal and administrative framework within which h.e. problems arise and within which resolutions are soughtInternal and External governance may overlap. i.e a sexual harassment claim may be heard by an internal grievance committee and externally in federal or state courts.If internal law is in conflict with external law, external law takes precedence.
  • Implied powers are the powers exercised by Congress which are not expressly given by the constitution but necessary to execute the powers which are.
  • Accreditation is the means by which the institution is eligible for Fed. Funds. There are six accreditation organizations recognized by the Dept. of Ed. SACS (Southern Association of Colleges and Schools)Racial and Ethnic diversity is influenced by oversight of admissions and financial aid programs.
  • The Board of Regents of the University System of Georgia was created in 1931.The governor appoints members to the Board, who each serve seven years. Today the Board of Regents is composed of 18 members, five of whom are appointed from the state-at-large, and one from each of the 13 congressional districts. The Board elects a chancellor who serves as its chief executive officer and the chief administrative officer of the University System. The BOR Oversees 34 public colleges and Universities.Georgia Foundation for Independent Colleges oversees 25 non-profit colleges and universities.Technical College System of Ga – Has a board and commissioner that oversees 26 colleges and 36,000 students.
  • Constitution – protects individual rightsStatute is a law enacted by the legislative branch.Ordinance is a local statute enacted by City Counsel or County CommissionTort is Civil law.
  • The meaning of the words and acts is found by relating them to the usage of the past.Howard University v. Best “in order for a custom and practice to be binding on the parties to a transaction, it must be proved that the custom is definite, uniform, and well known, and it must be established by ‘clear and satisfactory evidence.’
  • Case Law is judicial opinions and can include common law, statutes, rules ,regs, and constitutional provisions.
  • Teachers at a private high school had been discharged as the results of their opposition to school policies. They sued the school and its director Kohn on the Federal Constitutional rights of free speech and due process. The court had to decide if the school’s discharge of the teachers was state action. The teachers built their case around the fact that the virtually all of the school’s income came from state funds and was subject to state regulations. The court disagreed holding that neither the government funding or regulation was enough to make it state action. The funding was similar to that as a contractor to the state.
  • Generally courts will only find a nexus only when the state has compelled, directed, fostered, or encouraged the challenged action.Symbiotic relationship – The state has so far insinuated itself into a position of interdependence with an institution that it must be recognized as a joint participant in the challenged activity.Public function – the function must be one that is traditionally exclusively reserved to the State and traditionally associated with sovereignty.Pervasive entwinement – overlapping identity bottom up or top down.
  • Sectarian is not secularFour justices in a plurality opinion and two in a concurring opinion criticized the pervasively sectarian test from Hunt v. McNair and overturned two former Supreme court cases based on the test. In stead they place emphasis on the neutrality principle that is a foundation of the establishment clause analysis.
  • Policy making should not be limited to what the law requires. An institution that is serious about their institutional missions will often choose to do more than required.
  • The Law of Higher Education (Kaplan 4th) Chapter1

    1. 1. Todd Hurt, Macon C5<br />The Law of Higher Education – Chapter 1<br />
    2. 2. Sectors of Educational Law<br />
    3. 3. Governance of Higher Ed<br />Internal <br />Board of Trustees, Board of Regents<br />External<br />Public (Government)<br />Private (Associations)<br />
    4. 4. Legal Relationships<br />Board of Regents/Trustees<br />Officers, Administrators & Staff<br />Faculty<br />Students<br />
    5. 5. Sources of Educational Law<br />Internal Law<br />Institutional Rules<br />Institutional Contracts<br />Academic Custom & Usage<br />External Law<br />Federal<br />State<br />Local<br />
    6. 6. External Law Circumscribes Internal Law<br />Federal Constitution<br />Federal Statutes<br />Federal Regulations<br />State Constitution<br />State Statutes & Local Ordinances<br />State & Local Regulations<br />State Common Law<br />Internal Law of the College or University<br />
    7. 7. The need for Educational Law<br />Students<br />Plagiarism<br />Improper Use of Campus Computer Networks<br />Student Fee Allocations<br />Victims of Harassment<br />Sports Eligibility<br />Disability Access<br />Hazing<br />Campus Violence<br />Grades<br />Suicide<br />
    8. 8. The need for Educational Law<br />Faculty<br />Lab or Office Space<br />Size of Classes<br />Sexual Harassment<br />Salary <br />Tenure<br />
    9. 9. Evolution of Higher Education Law<br />Tradition and Virtue afforded Autonomy<br />In Loco parentis – “in the place of the parents”<br />Post Secondary Education was a privilege and not a right.<br />Contract law was written heavily in favor of the institution.<br />Governmental Immunity (Public) & Charitable Immunity (Private) provided protection from civil suits.<br />
    10. 10. Twentieth Century Environment of Change<br />Growth and Diversity of Student Bodies and Faculty<br />Diversity of Educational Programs<br />Advances in Technology<br />Increased Dependence on Federal and Private Assistance (Demands for Accountability)<br />Study Abroad Programs<br />Civil Rights and Student Rights Movements<br />Equal access for lower socioeconomic students<br />
    11. 11. 21st Century Influence on H. Ed Law<br />Diversification<br />Technologization<br />Commercialization<br />Globalization<br />Online For-profit Universities<br />
    12. 12. Governance of Higher Ed<br />Internal <br />Board of Trustees, Board of Regents<br />External<br />Public (Government)<br />Private (Associations)<br />
    13. 13. Internal Governance<br />Board of Trustees/Regents<br />President<br />Chancellor<br />Chief Business Officer<br />Chief Information Officer<br />General Counsel<br />Provost/Vice President<br />Deans<br />Department Chairs<br />Compliance Officers<br />
    14. 14. External Governance<br />States have primary authority over Education.<br />Authority to create and dissolve institutions<br />Authority to grant degrees<br />Administrative Procedures, Open Records laws, etc.<br />Fiscal/taxation powers<br />Police Powers<br />State Courts establish and enforce Common law of contracts and torts<br />
    15. 15. External Governance<br />Federal Government<br />Fed. Constitution does not express power over education<br />Delegation of powers to the States<br />However the Federal Government is granted the power to raise and spend money.<br />Implied Powers<br />
    16. 16. Implied Powers<br /> Authority is drawn from The “Necessary and Proper Clause” (Elastic Clause) Art. 1., Sect. 8, Clause 18.<br />“The Congress shall have power – To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” <br />
    17. 17. Implied Powers<br />Power to dictate how Federal funds are spent and accounted for.<br />Fed. Recognition of private accrediting agencies.<br />Other Federal requirements:<br />Accommodations for disabilities<br />Racial and ethnic diversity<br />Prevention Sexual Discrimination/Harassment<br />
    18. 18. Local Governance<br />External<br />Establish/Control Community Colleges<br />Internal<br />Law Enforcement<br />Public Health<br />Zoning<br />Local Taxation<br />
    19. 19. External Agencies<br />Federal<br />Department of Education<br />Dept. of Homeland Security<br />Dept. of Health and Human Services<br />Department of Labor<br />OSHA<br />National Institutes of Health<br />Department of Defense<br />
    20. 20. External Agencies<br />State<br />Board of Regents –Public<br />Georgia Independent College Association – Private non-profit<br />?? – Private for-profit<br />Technical College System of Georgia <br />Local<br />Community College Board of Trustees<br />
    21. 21. External Sources of Law<br />Federal and State Constitutions<br />Federal & State Statutes<br />i.e. Higher Education Act of 1965<br />United States Code (annotated)<br />Georgia Code <br />Federal & State Administrative Agencies<br />Regulations<br />Federal Register<br />Enforcement of Regulations is “adjudication”<br />State Common Law “Judge made laws”<br />i.e Contract law and Tort law<br />Local Ordinances<br />Local Ordinance Book<br />
    22. 22. Internal Sources of Law<br />Institutional Rules and Regs<br />Faculty contracts<br />Student contracts<br />Contracts w/Outside Parties<br />If contract law isn’t clear “Academic Custom and Usage” is used in interpretation.<br />Faculty Manual<br />Student Handbook<br />Course Syllabus <br />
    23. 23. Terminology<br />Express Contracts- (oral or written) is a contract in which all elements are specifically stated.<br />Implied Contracts – existence of the contract is assumed by the circumstances. (A contract agreed by non-verbal conduct). i.e. You are paid to work.<br />Summary Judgment- Facts being presented can not be disputed and there is no reason for a trial. The court can award judgment or dismiss the case.<br />
    24. 24. Case Law <br />Case law – Judicial opinions<br />The court’s decision has the effect of binding precedent only within its jurisdiction.<br />Opinions are published <br />Federal<br />United States Supreme Court Reports<br />Federal Reporter (US Court of Appeals)<br />State<br />Georgia Reports (and National/Regional Reports)<br />All Fed/State Decisions <br />Westlaw<br />LEXIS<br />
    25. 25. State Action<br />The Federal Constitution does not regulate private institutions on issues of individual rights.<br />Before a court can require a higher education institution to comply with individual rights requirements of the federal Constitution it must determine if the institution is public or private.<br />
    26. 26. Rendell-Baker v. Kohn (1982) <br />Private High School<br />Rendell & Baker Dismissed for opposition to school policies.<br />Federal right to free speech & due process<br />Dismissal State Action?<br />State funding and Regulations of the school<br />Funding was likened to state ‘Contractor’<br />
    27. 27. Rendell-Baker v. Kohn (1982) <br />Nexis<br />Symbiotic Relationship<br />Public Function<br />Brentwood v. Tennessee Sec. Athletic Assoc.<br />Pervasive Entwinement<br />
    28. 28. Other basis of legal Rights for Private institutions<br />Title VI – Race discrimination<br />Title VII – prohibition of employment discrimination<br />Title XI- Sex discrimination<br />
    29. 29. 1st amendment<br />Establishment clause- public institutions must maintain a neutral stance regarding religious beliefs and activities.<br />Free Exercise clause - the right of every person to choose their own course.<br />
    30. 30. Bob Jones University v. United States<br />University maintained racially restrictive policies on dating and marriage<br />IRS denied Tax Exempt Status<br />Univ. argued that racial practices were religiously based and that was its free right to free exercise of religion.<br />Supreme court ruled the Fed. Govt. has a compelling interest in ending discrimination in education that outweighs denial of tax benefits.<br />
    31. 31. Government Support for Religious Institutions<br />Does financial support from the government constitute support for religion?<br />Would it violate the establishment clause?<br />Three pronged test-<br />Statute must have a secular purpose<br />Primary effect must neither advance or inhibit religion<br />Statute must not foster govt. entanglement with religion. <br />
    32. 32. Hunt v. mcnair (1973)<br />Further defined the primary effect prong<br />“Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.”<br />Mitchell v. Helms, 530 U.S. 793 (2000)<br /> “Pervasively sectarian”<br />
    33. 33. Church-State Problems in Public Institutions<br />Public institutions clearly are subject to the 1st Amendment’s establishment and free exercise clauses.<br />Most contention comes when a prayer or religious activity is incorporated into a public institution’s activities or events.<br />
    34. 34. Church-State Problems in Public Institutions<br />Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997)<br />Commencement prayer challenged<br />Court rejected the challenge holding that the prayer was “simply a tolerable acknowledgment of beliefs widely held among people of this country”.<br />Court also said the prayers were voluntary and not coercive. The attendees were free to exit and return.<br />
    35. 35. Church-State Problems in Public Institutions<br />Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)<br />A tenured professor at Tennessee State challenged prayers in faculty meetings, dedication ceremonies, and guest lectures.<br />TSU changed to a moment of silence.<br />Appellate Court later determined neither to be a violation of the establishment clause.<br />
    36. 36. Church-State Problems in Public Institutions<br />Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)<br />3 pronged Lemon test<br />Purpose – prayer may dignify a public occasion<br />Effect – non-sectarian prayers/moment of silence were not in effect to indoctrinate the audience but rather encourage reflection.<br />Entanglement – “entanglement created by a moment of silence is nil” <br />
    37. 37. Church-State Problems in Public Institutions<br />Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)<br />Court invalidated student led invocations before Santa Fe School District’s football games.<br />Based on: <br />Perceived endorsement of religion <br />History of prayer<br />Sham secular purposes<br />
    38. 38. Law and Policy<br />Legal issues result in conclusions and advice on what the law requires or permits in a given circumstance.<br />Policy issues are stated and analyzed using norms and principles of administration and management.<br />Policy choices may implicate legal issues and legal issues may affect the viability of policy choices.<br />