The Law of Higher Education. William A. Kaplin

Figure I.1 The Education Law Universe

      In a higher education law course, therefore, one would ask: Does this case or problem deal with public higher education or with private higher education? (See Section 1.5 of this book for discussion of this distinction.) If it is private higher education, then one would ask: Does this case or problem deal with secular higher education or with religious higher education? (See Section 1.6 for discussion of this distinction.) To further expand understanding, one could also ask whether the problem or case would be reasoned or resolved differently—and why—if it had involved private rather than public (or public rather than private) higher education, or had involved religious rather than secular (or secular rather than religious) higher education. Finally, for the broadest perspective, one might ask whether the case or problem would be reasoned or resolved differently if it had involved lower education rather than higher education.

      These distinctions and their significance in various contexts are emphasized throughout the Student Version.

B. The Governance of Higher Education

      Early in the study of higher education law, attention should be given to the governance of higher education, that is, the structures and processes by which higher education institutions are governed. As more fully explained in Section 1.3 of this book, the concept of governance can be divided into two categories: internal governance (that is, within the institution) and external governance (that is, external to the institution); and external governance, in turn, may be further divided into two subcategories: public external governance (that is, by government) and private external governance (that is, by private associations).

      A focus on governance is important to the student of higher education law because, as also explained in Section 1.3, “[g]overnance structures and processes provide the legal and administrative context within which issues and disputes arise” and “the framework within which parties seek to resolve problems and disputes.” Since the structures and processes for higher education governance differ markedly from those for elementary and secondary education, the basic boundary line in the “Education Law Universe” (Section A above) is equally applicable to matters of governance. Similarly, the boundary lines between public and private higher education institutions, and between private secular and private religious institutions, also indicate parallel distinctions in the governance of higher education. Thus, just as the law may vary from one sector to another of the education law universe, the governance structures and processes may vary as well. Whenever one is analyzing a legal problem or reading a judicial opinion, therefore, it is helpful to begin not only by determining the sector of the universe within which the problem or case falls but also by identifying the particular governance structure or process from which the problem or case arose and through which it might be (or might have been) resolved.

C. Sources of Higher Education Law

As a keystone of their internal governance systems, higher educational institutions create “internal law” that delineates authority and rights, and embodies the rules and procedures, by which institutions govern themselves. There are three main sources of internal law: institutional rules and regulations (Section 1.4.3.1 of this book), institutional contracts (Section 1.4.3.2), and academic custom and usage (Section 1.4.3.3). Circumscribing this internal law is the external law (here, public external law) created by the federal government and state and local governments through their own governance processes (Section 1.4.2). These sources of law, and the interrelations among them, are another factor to consider—along with the education law universe sectors (Section A above) and the governance structures and processes (Section B above)—when reading judicial opinions or analyzing problems in higher education law. It will be helpful, therefore, to identify the pertinent source(s) of law that provide(s) the basis for the judicial opinion or that can be used to analyze the problem. Figure I.2 depicts the various sources of law and the order in which each source “trumps” other sources. Each ring of law in the figure is superior to the other rings that are farther inside and inferior to the other rings of law that are farther outside. Thus, when there is inconsistency or conflict between two applicable sources of law, the law in the ring farthest from the center will prevail.