The Law of Higher Education

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 (Section 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

William A. Kaplin is a professor of law at The Catholic University of America, Columbus School of Law. He is the past chair of the Education Law Section of the Association of American Law Schools, the former editor of the Journal of College and University Law, and a former member of the Education Appeal Board of the U.S. Department of Education. He is a contributing editor for Synfax Weekly Report on Critical Issues in Higher Education, editorial board member for the Journal of College and University Law, and a mentor/leader for the biannual Houston Higher Education Law Roundtable; and since 1991 he has been a faculty member/presenter for the Annual National Conference on Law and Higher Education. He has received multiple awards and has been named a fellow of the National Association of College and University Attorneys.
 
Barbara A. Lee is professor of human resource management at Rutgers University's School of Management and Labor Relations, where she was dean from 2002-2006. Lee conducts research on the impact of legislation and judicial decisions on employment relations policy and practices in academic and business organizations in the U.S. and Western Europe. Her work combines field studies and legal research methodologies and has been published in the Industrial and Labor Relations Review, Industrial Relations, Human Resource Management, the Journal of College and University Law, and the Journal of Higher Education. She is the coauthor of Academics in Court: The Consequences of Faculty Discrimination Litigation, which deals with the effects of discrimination litigation on plaintiffs and employer defendants.
 
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