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Instructor Class Description

Time Schedule:

Steven G Olswang
Seattle Campus

Higher Education and the Law

Legal implications of university operations and an explanation of the legal and constitutional rights of students, faculty, and staff within the university. Special attention given to faculty employment and termination decisions; student protections, including due process; and university liabilities.

Class description

EDLPS 583 HIGHER EDUCATION AND THE LAW Course Syllabus and Reference List Autumn Quarter 2012

Professor Steven G. Olswang Educational Leadership and Policy Studies

I. Goals and Objectives

This course is designed to expose the student to the vast range of administrative problems at the college and university level that have legal implications. The information and experiences generated from this course should assist current and prospective college and university faculty and administrators in recognizing the legal parameters around which decisions are made.

No attempt will be made in this course to provide definitive legal answers to particular problems. Such tasks remain within the domain of law schools, institutional attorneys, state attorneys general, and ultimately, the courts. The overall objective of the course is to provide illustrations of the legal issues involved in academic decision making so that one might be able to recognize a legal problem and seek the necessary assistance and guidance.

II. Course Procedures

The nature of the course requires that it be conducted in a mixed lecture and seminar format. The instructor will undertake responsibility for outlining and structuring the problem areas and discussing the major legal issues involved. Students will be expected to have completed the readings for each class session in order to participate actively in the discussion of these matters.

Law is more than just a collection of rules to be followed. It involves history, philosophy, sociology, human relations, and other disciplines in its formulation and reformulation. For this reason, discussion is highly appropriate at all times. While the law may dictate specific requirements in a particular instance, the philosophical principles behind such law will be as much a subject of this course as the particulars of the law.

III. Requirements

A. No examination will be given.

B. During the course of the quarter, two factual problems will be distributed. These factual problems will relate to the subject matter to be discussed during the next class session. Each student is required to answer each of the problems in writing (maximum length five pages, typed, double-spaced). Two copies of the paper must be turned in (or a copy electronically transmitted) by the beginning of the next class session for the paper to be counted.

Papers should not be detailed legal briefs, though references to the resources relied on are required. Papers should reflect an understanding of the legal issues and decisions affecting the problem area, an explanation of the current law, as well as discussion of alternatives available. A recommendation for what action to take is mandatory.

IV. Grading

A. 80% of the final grade will be based upon the problem papers submitted by the student (40% per paper).

B. 20% of the final grade will be based upon class participation.

V. Resources

The required text for the course is:

Kaplin, William A. and Lee, Barbara A. The Law of Higher Education, Fourth Edition, Student Version. San Francisco: John Wiley & Sons, 2007. An optional text for the course is: Kaplin, William A. and Lee, Barbara A. Year 2009 Cumulative Supplement, The Law of Higher Education, Fourth Edition, Student Version. Washington, D.C.: NACUA, 2009.

Course Schedule and Reading List

Session I: Introduction to the Course (September 24) Law in American Colleges and Universities The Public / Private Dichotomy Judicial Deference Governing Board Authority Public Meetings/Records Accreditation


Kaplan & Lee, pp. 1-41; 83-87; 646-648

American Association of University Professors, Statement on Government of Colleges and Universities.

Dunham, Stephen S., Government Regulation of Higher Education: The Elephant in the Middle of the Room. 36(3) Journal of College and University Law 749-790 (2010).

Kinser, Kevin., Dimensions of Corporate Ownership in For-Profit Higher Education. 30(3) The Review of Higher Education 217-245 (Spring 2007).

Session II Academic Freedom (October 1) First Amendment Free Speech Regulating Faculty Political and Religious Speech


Kaplan & Lee, pp. 43-55; 239-290

American Association of University Professors, 1940 Statement of Principles on Academic Freedom and Tenure.

American Association of University Professors, Recommended Institutional Regulations on Academic Freedom and Tenure.

Connell, Mary Ann, Melear, Kerry Brian, Savage, Frederick G., Collegiality in Higher Education Employment Decisions: The Evolving Law. 37(3) Journal of College and University Law 529-588 (2011).

Hutchens, Neal H., A Confused Concern of the First Amendment: The Uncertain Status of Constitutional Protection for Individual Academic Freedom. 36(1) Journal of College and University Law 145-190 (2009). White, Lawrence, Fifty Years of Academic Freedom Jurisprudence. 36(3) Journal of College and University Law 791-842 (2010).

Session III: NO CLASS (October 8) Session IV: Faculty Hiring (October 15) Appointment, Promotion & Tenure Due Process in Faculty Matters Terminations for Cause Faculty Discipline Post Tenure Review


Kaplin & Lee, pp. 183-238

Euben, Donna and Lee, Barbara A. Faculty Discipline: Legal and Policy Issues in Dealing with Faculty Misconduct. 32(2) Journal of College and University Law 241-308 (2006).

Lee, Barbara A. and Olswang, Steven G. Legal Parameters of the Faculty Employment Relationship. In J. Smart (Ed.), Higher Education: Handbook of Theory and Research. New York: Agathon Press (1985).

Wood, Melinda and Des Jarlais, Christine, When Post-Tenure Review Policy and Practice Diverge: Making the Case for Congruence. 77(4) Journal of College and Higher Education 561-588 (July/August 2006).

Session V: Retrenchment and Financial Emergency (October 22) Degree, Program and School Closure Institutional Mergers


Olswang, Babbitt, Cameron & Kamai, Retrenchment. 30(1) Journal of College and University Law, 47-74 (2003).

Olswang, Steven G. and Babbitt, Ellen M, Financial Distress and Faculty Issues. 2009 NACUA Annual Meeting Outline.

Session VI: Faculty Governance and Collective Bargaining (October 29) Faculty Rights, Obligations, and Protections Intellectual Property and Technology Transfer Conflicts of Interest


Kaplin & Lee, pp. 117-123; 613-621; 649-657

DiGiovanni, Nicholas and Wolf, John, Labor Law Primer. 2009 NACUA Annual Meeting Outline.

Gall, Kaplan, and Murphy, Labor Law Primer: An A to Z Overview of Labor Relations Issues Under the NLRA for In-House Counsel. 2007 NACUA Annual Meeting Outline.

Lubbers, Guidelines for Cases Arising under NLRB v. Yeshiva University (1981).

Maisto, Maria and Street, Steve, Confronting Contingency: Faculty Equity and the Goals of Academic Democracy. 97(1) Liberal Education 6-13 (Winter 2011).

Rhoades, Gary, Faculty Unions, Business Models, and the Academy’s Future. Change 20-26 (Nov/Dec 2011).

Session VII: Nondiscrimination and Affirmative Action (November 5) Readings:

Kaplan & Lee, pp. 135-182; 625-643

Alger, Jonathon R., From Discrimination to Diversity and Beyond: Our Evolving Legal Conversation on Race and Higher Education. 36(3) Journal of College and University Law 983-1001 (2010).

Connell, Mary Ann, Race and Higher Education: The Tortuous Journey Towards Desegregation. 36(3) Journal of College and University Law 945-982 (2010). Garrow, David, The Evolution of Affirmative Action and the Necessity of Truly Individualized Admissions Decisions. 34(1) Journal of College and University Law 1-20 (2007).

Rothstein, Laura, Higher Education and Disability Discrimination: A Fifty Year Retrospective. 36(3) Journal of College and University Law 843-874 (2010).

Santos, Jose L., Cabrera, Nolan L., and Fosnacht, Kevin J., Is “Race-Neutral” Really Race Neutral?: Disparate Impact Towards Underrepresented Minorities in Post-209 UC System Admissions. 81(6) Journal of Higher Education 605-631 (Nov/Dec 2010).

Session VIII: Student Admissions (November 12) Academic Dismissals Student Discipline Degree Revocation


Kaplin & Lee, pp. 293-360; 402-474

Connell, Mary Ann, Student Academic Misconduct: Legal Ramifications. 2009 NACUA Annual Meeting Outline.

Layish, Goldblum, and Mazzarelli, Student Discipline in the Face of Criminal Prosecution. 2008 NACUA Annual Meeting Outline.

Session IX: Student Organizations (November 19) Student Fees Residence Life Student Speech and Publication Academic Bill of Rights Student Records


Kaplan & Lee, pp. 374-401; 475-558

Broe, Karen-Ann, The Buck Stops Where? Student Organizations—Risks, Liabilities and First Amendment Issues. 2009 NACUA Conference Meeting Outline.

Cameron, Meyers & Olswang, Academic Bills of Rights: Conflict in the Classroom. 31(2) Journal of College and University Law 243-290 (2005).

McDonald, Steven J., Fundamentals of Fundamental FERPA. 2009 NACUA Conference Meeting Outline.

Patti, Christopher M. The Buck Stops Where? Student Organizations—Risks, Liabilities and First Amendment Issues. 2009 NACUA Conference Meeting Outline.

Session X: International Education (November 26) Immigration / Visa Issues Patriot Act Unionization of Graduate Students


Kaplan & Lee, pp. 402-406

Brookes, Marilyn and Huisman, Jeroen, The Eagle and the Circle of Gold Stars: Does the Bologna Process Affect US Higher Education? 34(1) Higher Education in Europe 3-23 (April 2009).

Burch, Kathleen, Going Global: Managing Liability in International Externship Programs – A Case Study. 36(2) Journal of College and University Law 455-511 (2010).

Flores, Stella M., State Dream Acts: The Effect of In-State Resident Tuition Policies and Undocumented Latino Students. 33(2) The Review of Higher Education 239-283 (Winter 2010).

Rhoads, Robert A. and Rhoades, Gary, Graduate Employee Unionization as a Symbol of and Challenge to the Corporatization of U.S. Research Universities. 76(3) The Journal of Higher Education 243-275 (May/June, 2005).

Session XI: Institutional Liability and Risk Management (December 3) Campus Facilities Issues Campus Speakers Community/Campus Relations


Kaplan & Lee, pp. 87-116; 124-134; 392-401

de Haven, Helen H., The Academy and Public Peril: Mental Illness, Student Rampage, and Institutional Duty. 37(2) Journal of College University Law 267-358 (2011).

Lazenby Jr., Henry H., Controversial Speakers on Campus: The Law, Publicity, and Policy. 2009 NACUA Annual Meeting Outline.

Student learning goals

General method of instruction

Recommended preparation

Class assignments and grading

The information above is intended to be helpful in choosing courses. Because the instructor may further develop his/her plans for this course, its characteristics are subject to change without notice. In most cases, the official course syllabus will be distributed on the first day of class.
Last Update by Steven G Olswang
Date: 09/20/2012