The Law of Higher Education. William A. Kaplin
in the higher education world, moreover, tended to think of themselves as removed from and perhaps above the world of law and lawyers. The roots of this traditional separation between academia and law are several.
Higher education (particularly private education) was often viewed as a unique enterprise that could regulate itself through reliance on tradition and consensual agreement. It was thought to operate best by operating autonomously, and it thrived on the privacy afforded by autonomy. Academia, in short, was like a Victorian gentlemen's club whose sacred precincts were not to be profaned by the involvement of outside agents in its internal governance.
The unique higher education environment was also thought to support a special virtue and ability in its personnel. College faculty and administrators (often themselves respected scholars) had knowledge and training far beyond that of the general populace, and they were charged with the guardianship of knowledge for future generations. Theirs was a special mission pursued with special expertise and often at a considerable financial sacrifice. The combination spawned the perception that ill will and personal bias were strangers to academia and that outside monitoring of its affairs was therefore largely unnecessary.
The law to a remarkable extent reflected and reinforced such attitudes. Federal and state governments generally avoided any substantial regulation of higher education. Legislatures and administrative agencies imposed few legal obligations on institutions and provided few official channels through which their activities could be legally challenged. What legal oversight existed was generally centered in the courts. But the judiciary was also highly deferential to higher education. In matters concerning students, courts found refuge in the in loco parentis doctrine borrowed from early English common law. By placing the educational institution in the parents' shoes, the doctrine permitted the institution to exert almost untrammeled authority over students' lives.
Nor could students lay claim to constitutional rights in the higher education environment. In private education the U.S. Constitution had no application; and in the public realm courts accepted the proposition that attendance at a public postsecondary institution was a privilege and not a right. Being a “privilege,” attendance could constitutionally be extended and was subject to termination on whatever conditions the institution determined were in its and the students' best interests. Occasionally courts did hold that students had some contract rights under an express or implied contractual relationship with the institution. But—as in Anthony v. Syracuse University, 231 N.Y.S. 435 (N.Y. App. Div. 1928), where the court upheld the university's dismissal of a student without assigning any reason other than that she was not “a typical Syracuse girl”—contract law provided little meaningful recourse for students. The institution was given virtually unlimited power to dictate the contract terms; and the contract, once made, was construed heavily in the institution's favor.
As further support for these judicial hands-off attitudes, higher education institutions also enjoyed immunity from a broad range of lawsuits alleging negligence or other torts. For public institutions, this protection arose from the governmental immunity doctrine, which shielded state and local governments and their instrumentalities from legal liability for their sovereign acts. For private institutions, a comparable result was reached under the charitable immunity doctrine, which shielded charitable organizations from legal liability that would divert their funds from the purposes for which they were intended.
In the latter half of the twentieth century, however, events and changing circumstances worked a revolution in the relationship between academia and the law. Changes in the composition of student bodies and faculties, growth in the numbers and diversity of institutions and educational programs, advances in technology, greater dependence of both private and public institutions on federal financial assistance and research support, increases in study abroad programs and joint ventures between American institutions and those in other countries, and expanded relationships with private sector commercial entities dramatically altered the legal and policy landscape for colleges and universities. The civil rights and student rights movements contributed to the legal demands on institutions, as individuals and groups claimed new rights and brought new challenges. Demands for accountability by federal and state governments and private donors also spawned new challenges.
As a result of these developments, the federal government and state governments became heavily involved in postsecondary education, creating many new legal requirements and new forums for raising legal challenges. Students, faculty, other employees, and outsiders became more willing and more able to sue postsecondary institutions and their officials (see Section 1.1). Courts became more willing to entertain such suits on their merits and to offer relief from certain institutional actions. In short, by the end of the twentieth century, higher education no longer enjoyed much of the judicial and legislative deference it once knew.
The latter years of the twentieth century and the first two decades of the twenty-first witnessed increasing conflict on campus relating to diversity of ideas, racial and ethnic identities, sexual orientation, gender concerns, and other matters concerning cultural diversity. As the twenty-first century progressed, there was no lessening of the pace of change or the impact of new societal developments on higher education. Remnants, or new incarnations, of most trends from the 1980s and 1990s (and some earlier ones) continued to occupy the attention of institutional officers, counsel, and faculty; and new trends and developments continued to emerge. The globalization, commercialization, “technologization,” and diversification of higher education continued to be predominant, overarching trends affecting higher education in numerous ways.
In all, postsecondary education remains a dynamic enterprise in the twenty-first century, but institutions face several significant challenges. Societal developments and technological breakthroughs continue to be mirrored in the issues, conflicts, and litigation that colleges and universities now face. Virtually every area of the law now applies to institutions of higher education. The challenge for the law is, as it has been, to keep pace with higher education by maintaining a dynamism that is sensitive to institutions' evolving missions and the varying conflicts that institutions confront. And the challenge for higher education continues to be to understand and respond constructively to changes and growth in the law while maintaining focus on multiple purposes and constituencies.
Section 1.3. The Governance of Higher Education
1.3.1 Basic concepts and distinctions. Governance refers to the structures and processes by which higher education institutions and systems are governed in their day-to-day operations as well as their longer-range policy making. Governance encompasses (1) the organizational structures of individual institutions and (in the public sector) of statewide systems of higher education; (2) the delineation and allocation of decision-making authority within these organizational structures; (3) the processes by which decisions are made; and (4) the processes by which, and forums within which, decisions may be challenged.
Higher education governance can be divided into two categories: internal governance and external governance. “Internal governance” refers to the structures and processes by which an institution governs itself. “External governance” refers to the structures and processes by which outside entities (that is, entities external to the institution itself) play a role in the governance of institutional affairs. Internal governance usually involves “internal” sources of law (see Section 1.4.3 of this book); and external governance generally involves “external” sources of law (see Section 1.4.2). In turn, external governance can be further divided into two subcategories: public external governance and private external governance. “Public external governance” refers to the structures and processes by which the federal government (see Section 11.3), state governments (see Section 11.2), and local governments (see Section 11.1) participate in the governance of higher education. “Private external governance”