legal aspects to higher education study guide

8/2/2019 Legal Aspects to Higher Education Study Guide

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11. The student should be given the right of appeal within administrative structure of theuniversity.

12. The student should not be suspended before a hearing.

5. Define liberty.

Liberty is freedom to pursue activities normally found in a democratic society. This is afundamental right and a branch of “substantive due process of law”. It is mentioned underthe Fourteenth Amendment, “No state shall…deprive any person of life, liberty orproperty, without due process of law.” Examples are the right to have children, and rightto have a career.

6. Define property

This is a part of substantive due process of law. A person’s liberty includes his or her“good name, reputation, honor, or integrity.” Federal law says “’education becomes aproperty interest in public educational system.” It is the rightfulness of a person such as a job. This is triggered by the Fourteenth Amendment, “No state shall…deprive any person

of life, liberty or property, without due process of law.”

7. Describe in detail the rights/status of substantial due process. (AVM-CPR-P)Status of substantive due process:1. Freedom of association2. The right to vote or participate in the electoral process3. The right of mobility and interstate travel4. The right of fairness in criminal process5. The right of fairness in recognition6. The right to privacy

8. Describe in detail the nine sources of postsecondary education law . (CIA-S)The main sources of postsecondary educational law are:1. Constitutional law which includes a) Federal Law—first Amendment and fourteenth

Amendment b) State Law- that establishes the laws in colleges and universities2. Statutes at three levels—a) Federal Law (for Federal tax laws), b) State Law (for

example, criminal law, zoning law), and c) Local Law (such as parking, zoning law)3. Administrative rules and regulations—related to administration such as Athletic

Association, Bar Exam4. Administrative Adjudication—agency formulates rules and regulations for an action,

such as Commission on Human Rights5. Case Law—is based on past cases, also known as “judge-made law”.6. Common Law—is “discovered” law. It is operated differently and locally. Common

law emerges from case decisions. In common law, the court decides the lawapplicable to the case by interpreting statutes and prior cases.

7. Institutional rules and regulations—rules should be legal, reasonable, and clear. Theserules apply for institutional remedies, for example, “grade appeal”

8. Institutional contracts—create a binding arrangement for students, staff, faculty andoutside agencies.



9. Academic custom and usage—also known as “campus common law” such as“homecoming” or cap and gown custom.

9. Describe the differences between private and public institutions.

The major differences between private and public institutions are:

a)

State has little or no control over private colleges.b) Federal constitution has less impact on private colleges.c) Action usually brought under “contract theory”. There are three types of contract

theories—i) as an “agent” of the government e.g. Stanford University, ii) as a“public” function e.g. Baylor University Medical Center, and iii) as a “government”contract where no religion does not creep in

10. Describe/Draw the structure of the court system.

The structure of the court system:U.S. Courts of Appeals and U.S. District Courts—decide cases on federal statutes andcitizens of different states.

State Supreme Court, District Appeals Court and Trial/County Court—decide caseinvolving state statute and federal law

11. What are the two functions of the court system?

The main functions of the court systems:a) Decide the cases by applying appropriate lawsb) Interpret enactments of the legislaturec) Determine the constitutionality to the enactments of the legislature

12. How many Court of Appeal circuits exist? Which is Arkansas? What other states

are in Arkansas’ circuit?

There is at least one district court in each state (made up of three judges). There are 13Federal Courts of Appeals with 12 regional circuits, and one nationwide circuit. Arkansasis in the 8th Circuit. The 8th Circuit covers Arkansas, Iowa, Minnesota, Missouri,Nebraska, North Dakota and South Dakota.

13. Amendment I

First Amendment is about “establishment clause” and “free exercise clause”. Theconstitution says, “Congress shall make no law respecting an establishment of religion, orprohibiting the free exercise thereof…”

14. Amendment XIV

Fourteenth Amendment is about “due process” which states “No state shall make orenforce any law which shall abridge the privileges or immunities of citizen of the UnitedStates; nor shall any state deprive any person of life, liberty, or property.”

15. List the court cases that led to the separation of church and state.



The erosion of the wall separating church and state is shown by the progression of thefollowing cases: Everson v. Board of Education; Tilton v. Richardson; Hunt v. McNair;

Agostini v. Felton; Zelmar v. Locke

16. What the four types of state courts?

a)

Courts of general jurisdiction—covers all cases except special caseb) Courts of special jurisdiction—for large cases such as Juvenile Court

c) Small claims courts—for lawsuits involving small amounts of money

d) Appellate court—found in all states, receive sheer volume of cases

17. What the different types of cases?

Parochial school cases (ELA)

Everson v. Board of Education—statute providing bus fare for parochial studentsdeclared unconstitutional Lemon v. Kurtuman—state money for institutional supplements unconstitutional (PAcase); It has to be a) secular purposes/ not religious b) Neutral- neither advances or

inhibits religion, c) no excessive entanglement d) free exercise of religion Agostini v. Felton—payment of Title I teacher in parochial schools does not violates theestablishment clause because Title I funds should be available to all children. It should besecular, neutral and without entanglement.

Bible Reading or Prayer (EWAMS)

Abington v. Schempp—concerns about BR in PA; no bible reading even if children can

be excused

Murrya v. Curlett—Board cannot set policy requiring bible reading in schools

Engle v. Vitale—Board of Regents cannot compel students to participate in prayer, NY

case, violates first amendmentWallace v. Jaffee—Alabama law authorized teachers to conduct prayers at school; no

silent prayer or period of meditation because it violates Lemon Test

Santa Fe v. Doe—laud speaker prayer in football club is not appropriate; policies

allowing prayer at games and other events, even if students initiated, unconstitutional and

not protected by private speech.

Construction related cases (Has to) Hunt v. McNair —revenue bonds issued for private religious college is constitutionalbecause it serves a public purpose; does not violate Lemon TestTilton v. Richardson—grants to religious schools for construction which has a secular

purpose is constitutional because it serves general purpose, e.g. Baylor UniversityMedical Hospital

Equal Access Act related cases (watch what Rose)

Widmar v. Vincent —at U. of Missouri, Kansas students were not allowed to use facilitiesfor religious groups; university cannot prevent equal access to students, groups and orspeakers for religious purposes



Westside Community Schools v. Mergens –the schools denied permission to a group of students to form a Christian Club. Students have the right to organize their own groups inpublic schools, whether these groups be religious, political because it is the equal accessact Rosenberger v. Rector —the student asked $5,800 funds for printing “Wide Awake” a

religious publication at the U. of Virginia; University cannot deny funding for a studentpublication which is religious in nature; violates Amendment I

Suspension/due process related cases (gives her every day)

Goss v Lopez—Ohio school students were suspended from school without hearing;principal did not hold hearing; deprive of their rights to an education; 6 studentssuspended for 10 days; no notice, no hearing. PoL=School should provide notice for whathe is accused of doing, and what the basis of the accusation was.Temporary suspension requires procedural due process.

Board of Curators of the U. of Missouri v. Horowitz—The student failed to meet medical

school standard; the student is dismissed from the university; faculty rated her clinicalskills “unsatisfactory”; students were given several opportunities to improve her study,got enough due processPoL= liberty and property interest of studentsResult=a hearing is not required by the due process clause for a public university todismiss a student for academic deficiencies. (Suspension is okay for academicdeficiencies)

Regents of the U. of Michigan v. Ewing—the student failed NBME Part I, importantnational medical exam; the student had academic and personal difficulties; the trends of the university is to let students retake the test; Pamphlet says, “Opportunity is provided tomake up the failure in a second exam”RoL=substantive due process are fundamental right; consistent is required; facultydecision was reviewed.

**Ela Ewams has to watch what Rose give her every day!! Formula

legal aspects to higher education study guide

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