TODD HURT, MACON C5The Law of Higher Education – Chapter 1

SECTORS OF EDUCATIONAL LAW

Public Education

Private Secular Ed

Private Non-Secular

Higher Ed Public Colleges, Universities, & Community Colleges

Private Secular Colleges & Universities

Private Religious Colleges & Universities

K-12 Public Elementary Schools & Preschools

Private Secular Elementary & Secondary Schools and Preschools

Private Religious Elementary & Secondary Schools & Preschools

GOVERNANCE OF HIGHER ED

• Internal • Board of Trustees, Board of Regents

• External• Public (Government)• Private (Associations)

LEGAL RELATIONSHIPS

Board of Regents/Trustees

Officers, Administrator

s & StaffFaculty Students

SOURCES OF EDUCATIONAL LAW

• Internal Law• Institutional Rules• Institutional Contracts• Academic Custom & Usage

• External Law• Federal• State• Local

EXTERNAL LAW CIRCUMSCRIBES INTERNAL LAW

Federal ConstitutionFederal Statutes

Federal RegulationsState Constitution

State Statutes & Local OrdinancesState & Local Regulations

State Common LawInternal Law of the College or University

THE NEED FOR EDUCATIONAL LAW

• Students• Plagiarism• Improper Use of Campus Computer Networks• Student Fee Allocations• Victims of Harassment• Sports Eligibility• Disability Access• Hazing• Campus Violence• Grades• Suicide

THE NEED FOR EDUCATIONAL LAW

• Faculty• Lab or Office Space• Size of Classes• Sexual Harassment• Salary • Tenure

EVOLUTION OF HIGHER EDUCATION LAW• Tradition and Virtue afforded Autonomy• In Loco parentis – “in the place of the

parents”• Post Secondary Education was a privilege

and not a right.• Contract law was written heavily in favor of

the institution.• Governmental Immunity (Public) &

Charitable Immunity (Private) provided protection from civil suits.

TWENTIETH CENTURY ENVIRONMENT OF CHANGE

• Growth and Diversity of Student Bodies and Faculty

• Diversity of Educational Programs• Advances in Technology• Increased Dependence on Federal and Private

Assistance (Demands for Accountability)• Study Abroad Programs• Civil Rights and Student Rights Movements• Equal access for lower socioeconomic

students

21ST CENTURY INFLUENCE ON H. ED LAW• Diversification• Technologization• Commercialization• Globalization

Online Fo

r-profit

Universitie

s

GOVERNANCE OF HIGHER ED

• Internal • Board of Trustees, Board of Regents

• External• Public (Government)• Private (Associations)

INTERNAL GOVERNANCE

• Board of Trustees/Regents• President• Chancellor• Chief Business Officer• Chief Information Officer• General Counsel• Provost/Vice President• Deans• Department Chairs• Compliance Officers

EXTERNAL GOVERNANCE

• States have primary authority over Education.• Authority to create and dissolve

institutions• Authority to grant degrees• Administrative Procedures, Open Records

laws, etc.• Fiscal/taxation powers• Police Powers• State Courts establish and enforce

Common law of contracts and torts

EXTERNAL GOVERNANCE

• Federal Government• Fed. Constitution does not express power over

education• Delegation of powers to the States

• However the Federal Government is granted the power to raise and spend money.• Implied Powers

IMPLIED POWERS

Authority is drawn from The “Necessary and Proper Clause” (Elastic Clause) Art. 1., Sect. 8, Clause 18.

“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.”

IMPLIED POWERS

• Power to dictate how Federal funds are spent and accounted for.

• Fed. Recognition of private accrediting agencies.

• Other Federal requirements:• Accommodations for disabilities• Racial and ethnic diversity• Prevention Sexual

Discrimination/Harassment

LOCAL GOVERNANCE

• External• Establish/Control Community Colleges

• Internal• Law Enforcement• Public Health• Zoning• Local Taxation

EXTERNAL AGENCIES

• Federal• Department of Education• Dept. of Homeland Security• Dept. of Health and Human Services• Department of Labor• OSHA• National Institutes of Health• Department of Defense

EXTERNAL AGENCIES

• State• Board of Regents –Public• Georgia Independent College Association –

Private non-profit• ?? – Private for-profit• Technical College System of Georgia

• Local• Community College Board of Trustees

EXTERNAL SOURCES OF LAW

• Federal and State Constitutions• Federal & State Statutes

• i.e. Higher Education Act of 1965• United States Code (annotated)• Georgia Code

• Federal & State Administrative Agencies• Regulations• Federal Register• Enforcement of Regulations is “adjudication”

• State Common Law “Judge made laws”• i.e Contract law and Tort law

• Local Ordinances• Local Ordinance Book

INTERNAL SOURCES OF LAW

• Institutional Rules and Regs• Faculty contracts• Student contracts• Contracts w/Outside Parties• If contract law isn’t clear “Academic Custom

and Usage” is used in interpretation.• Faculty Manual• Student Handbook• Course Syllabus

TERMINOLOGY

• Express Contracts- (oral or written) is a contract in which all elements are specifically stated.

• 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.

• 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.

CASE LAW

• Case law – Judicial opinions• The court’s decision has the effect of binding

precedent only within its jurisdiction.• Opinions are published

• Federal• United States Supreme Court Reports• Federal Reporter (US Court of Appeals)

• State• Georgia Reports (and National/Regional Reports)

• All Fed/State Decisions • Westlaw• LEXIS

STATE ACTION

• The Federal Constitution does not regulate private institutions on issues of individual rights.

• 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.

RENDELL-BAKER V. KOHN (1982)

• Private High School• Rendell & Baker Dismissed for

opposition to school policies.• Federal right to free speech & due

process• Dismissal State Action?• State funding and Regulations of the

school• Funding was likened to state

‘Contractor’

RENDELL-BAKER V. KOHN (1982)

• Nexis• Symbiotic Relationship• Public Function• Brentwood v. Tennessee Sec. Athletic

Assoc.• Pervasive Entwinement

OTHER BASIS OF LEGAL RIGHTS FOR PRIVATE INSTITUTIONS

• Title VI – Race discrimination• Title VII – prohibition of employment

discrimination• Title XI- Sex discrimination

1ST AMENDMENT

• Establishment clause- public institutions must maintain a neutral stance regarding religious beliefs and activities.

• Free Exercise clause - the right of every person to choose their own course.

BOB JONES UNIVERSITY V. UNITED STATES• University maintained racially restrictive

policies on dating and marriage• IRS denied Tax Exempt Status• Univ. argued that racial practices were

religiously based and that was its free right to free exercise of religion.

• Supreme court ruled the Fed. Govt. has a compelling interest in ending discrimination in education that outweighs denial of tax benefits.

GOVERNMENT SUPPORT FOR RELIGIOUS INSTITUTIONS

• Does financial support from the government constitute support for religion?

• Would it violate the establishment clause?• Three pronged test-

• Statute must have a secular purpose• Primary effect must neither advance or

inhibit religion• Statute must not foster govt.

entanglement with religion.

HUNT V. MCNAIR (1973)

• Further defined the primary effect prong• “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.”

• Mitchell v. Helms, 530 U.S. 793 (2000)• “Pervasively sectarian”

CHURCH-STATE PROBLEMS IN PUBLIC INSTITUTIONS

• Public institutions clearly are subject to the 1st Amendment’s establishment and free exercise clauses.

• Most contention comes when a prayer or religious activity is incorporated into a public institution’s activities or events.

CHURCH-STATE PROBLEMS IN PUBLIC INSTITUTIONS

• Tanford v. Brand, 104 F.3d 982 (7th Cir. 1997)• Commencement prayer challenged• Court rejected the challenge holding that

the prayer was “simply a tolerable acknowledgment of beliefs widely held among people of this country”.

• Court also said the prayers were voluntary and not coercive. The attendees were free to exit and return.

CHURCH-STATE PROBLEMS IN PUBLIC INSTITUTIONS

• Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)• A tenured professor at Tennessee State

challenged prayers in faculty meetings, dedication ceremonies, and guest lectures.

• TSU changed to a moment of silence.• Appellate Court later determined neither to

be a violation of the establishment clause.

CHURCH-STATE PROBLEMS IN PUBLIC INSTITUTIONS

• Chaudhuri v. Tennessee, 130 F.3d 232 (6th Cir. 1997)• 3 pronged Lemon test

• Purpose – prayer may dignify a public occasion• Effect – non-sectarian prayers/moment of

silence were not in effect to indoctrinate the audience but rather encourage reflection.

• Entanglement – “entanglement created by a moment of silence is nil”

CHURCH-STATE PROBLEMS IN PUBLIC INSTITUTIONS

• Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)• Court invalidated student led invocations

before Santa Fe School District’s football games.

• Based on: • Perceived endorsement of religion • History of prayer• Sham secular purposes

LAW AND POLICY

• Legal issues result in conclusions and advice on what the law requires or permits in a given circumstance.

• Policy issues are stated and analyzed using norms and principles of administration and management.

• Policy choices may implicate legal issues and legal issues may affect the viability of policy choices.