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Todd Hurt, Macon C5<br />The Law of Higher Education – Chapter 1<br />
Sectors of Educational Law<br />
Governance of Higher Ed<br />Internal  <br />Board of Trustees, Board of Regents<br />External<br />Public (Government)<br...
Legal Relationships<br />Board of Regents/Trustees<br />Officers, Administrators & Staff<br />Faculty<br />Students<br />
Sources of Educational Law<br />Internal Law<br />Institutional Rules<br />Institutional Contracts<br />Academic Custom & ...
External Law Circumscribes Internal Law<br />Federal Constitution<br />Federal Statutes<br />Federal Regulations<br />Stat...
The need  for Educational Law<br />Students<br />Plagiarism<br />Improper Use of Campus Computer Networks<br />Student Fee...
The need  for Educational Law<br />Faculty<br />Lab or Office Space<br />Size of Classes<br />Sexual Harassment<br />Salar...
Evolution of Higher Education Law<br />Tradition and Virtue afforded Autonomy<br />In Loco parentis – “in the place of the...
Twentieth Century Environment of Change<br />Growth and Diversity of Student Bodies and Faculty<br />Diversity of Educatio...
21st Century Influence on  H. Ed Law<br />Diversification<br />Technologization<br />Commercialization<br />Globalization<...
Governance of Higher Ed<br />Internal  <br />Board of Trustees, Board of Regents<br />External<br />Public (Government)<br...
Internal Governance<br />Board of Trustees/Regents<br />President<br />Chancellor<br />Chief Business Officer<br />Chief I...
External Governance<br />States have primary authority over Education.<br />Authority to create and dissolve institutions<...
External Governance<br />Federal Government<br />Fed. Constitution does not express power over education<br />Delegation o...
Implied Powers<br />	Authority is drawn from The “Necessary and Proper Clause” (Elastic Clause) Art. 1., Sect. 8, Clause 1...
Implied Powers<br />Power to dictate how Federal funds are spent and accounted for.<br />Fed. Recognition of private accre...
Local Governance<br />External<br />Establish/Control Community Colleges<br />Internal<br />Law Enforcement<br />Public He...
External Agencies<br />Federal<br />Department of Education<br />Dept. of Homeland Security<br />Dept. of Health and Human...
External Agencies<br />State<br />Board of Regents –Public<br />Georgia Independent College Association – Private non-prof...
External Sources of Law<br />Federal and State Constitutions<br />Federal & State Statutes<br />i.e. Higher Education Act ...
Internal Sources of Law<br />Institutional Rules and Regs<br />Faculty contracts<br />Student contracts<br />Contracts w/O...
Terminology<br />Express Contracts- (oral or written) is a contract in which all elements are specifically stated.<br />Im...
Case Law <br />Case law – Judicial opinions<br />The court’s decision has the effect of binding precedent only within its ...
State Action<br />The Federal Constitution does not regulate private institutions on issues of individual rights.<br />Bef...
Rendell-Baker v. Kohn (1982) <br />Private High School<br />Rendell & Baker Dismissed for opposition to school policies.<b...
Rendell-Baker v. Kohn (1982) <br />Nexis<br />Symbiotic Relationship<br />Public Function<br />Brentwood v. Tennessee Sec....
Other basis of legal Rights for Private institutions<br />Title VI – Race discrimination<br />Title VII – prohibition of e...
1st amendment<br />Establishment clause- public institutions must maintain a neutral stance regarding religious beliefs an...
Bob Jones University v. United States<br />University maintained racially restrictive policies on dating and marriage<br /...
Government Support for Religious Institutions<br />Does financial support from the government constitute support for relig...
Hunt v. mcnair (1973)<br />Further defined the primary effect prong<br />“Aid normally may be thought to have a primary ef...
Church-State Problems in Public Institutions<br />Public institutions clearly are subject to the 1st Amendment’s establish...
Church-State Problems in Public Institutions<br />Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997)<br />Commencement prayer ...
Church-State Problems in Public Institutions<br />Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)<br />A tenured prof...
Church-State Problems in Public Institutions<br />Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)<br />3 pronged Lemo...
Church-State Problems in Public Institutions<br />Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)<br />Co...
Law and Policy<br />Legal issues result in conclusions and advice on what the law requires or permits in a given circumsta...
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The Law of Higher Education (Kaplan 4th) Chapter1

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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 />

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