A Brief History of Hgher Education (Part 4)

One significant implication of these many profound changes is that university legal staffs are growing. A 2006 survey by the National Association of College and University Attorneys (NACUA) disclosed not only that such staffs are getting bigger, but also that a major reason is an average of 33 open litigation files at any given moment in time per isntitution. The survey revealed that chief legal officers with budgets in excess of $2,000,000 earned on average $240,000 per year, while at schools with smaller legal-office budgets, the average hovered around $130,000. Small schools pay on average $105,000 per year. (Selingo)  In 1961, only about 65 schools had in-house legal counsel, and most of these employed but a single lawyer. Today, membership in NACUA totals more than 3,200. Some of the legal developments that help explain the perceived need for ever-more attorneys in higher education include civil rights and civil liberties issues with their genesis in the sixties and seventies, such as:

“Attempts by colleges and universities, influenced by state political leaders, to suspend or expel students for protesting racial discrimination in higher education. The courts held that students are entitled to due process of law.
“Questions involving the parameters of protest and the protection of unpopular speech and debate about social and political issues. Landmark rulings held that colleges should protect the content of student speech but that reasonable limitations on time, place, and manner of speech and protest — like restrictions that prevent the disruption of academic activities — are appropriate.
“Cases revolving around whether students have the right to associate and form organizations that promulgate unpopular political and social topics. Some historic cases involved unsuccessful attempts by colleges to ban gay-rights organizations and political groups, like the Students for a Democratic Society, that were critical of ‘Americanism.’ Student religious groups also gained access to public campuses’ facilities during this period.
“The freedom of the campus press, redefining it in keeping with the fundamental protections of the First Amendment. Attempts by public colleges to withhold financial support for campus newspapers when their content was deemed distasteful or even loathsome by the administration were rebuffed by the courts.
“Faculty rights in their most basic sense, in cases that questioned the legitimacy of restrictions on academic freedom. For example, a loyalty-oath requirement was found to violate free speech because it limited the scope of a professor’s teaching and research. Faculty members sought the protections of labor laws and the right to bargain collectively.
“Employment-discrimination laws that considered the disparate treatment of minority groups and women in hiring, pay, job assignments, promotion, and the awarding of tenure.
“The formal breakup of racially structured systems of public higher education in Alabama, Louisiana, Tennessee and at least nine other states.” (Bickel & Ruger)
Issues which today’s top university attorneys predict will be on their front burners as the 21st century moves inexorably ahead include:
-Health & safety issues, including student violence -Government investigations -Race-conscious admissions -Intellectual property rights -Computer law and distance learning -Conflicts of interest -Individual privacy v. public accountability -The graying of the workforce -Employee benefits -Consumer and educational malpractice -Alternative income streams and for-profit ventures -Organized labor
Obviously, these legal issues are not unique to higher education. Neither are the major branches of the law that dictate the rules by which these issues are analyzed and resolved. The sources of these legal principles and rules are:
a.  Constitutions:  The U.S. Constitution defines the structure and powers of the three branches of the federal government, its limitations, and the rights remaining to the states and we the people. All states also have constitutions. These mimic the federal document in many ways, but also contain provisions unique to each one of them. For example, while an individual privacy right implicit in the U.S. Constitution’s Bill of Rights has been a controversial issue for decades, some states’ constitutions expressly accord such a right to citizens within their boundaries.
b.  Statutes:  Laws are passed by legislative bodies. At the national level, this of course is the Congress. All states have legislatures as well. Most mimic the U.S. Congress in being bicameral, but a few have but one house. Federal statutes must conform to the requirements of the U.S. Constitution. On an equal footing with these federal laws are Treaties signed by the executive branch and ratified by the U.S. Senate. At the state level, statutes must comport not only with the state’s constitution, but also with the federal constitution and any relevant federal statutes. In some areas federal law almost entirely preempts state law, such as in the fields of intellectual property and employee benefits. In other areas, such as discrimination law, the federal and state legislatures share statutory authority, and states may enact statutes so long as they do not trim back rights provided under federal law. For instance, no federal statute forbids discrimination on the basis of sexual preference, but the laws of a growing number of states do forbid such behavior by employers, landlords and public services. The New Jersey Law Against Discrimination is one such statute.
c.  Rules and Regulations:  If the universe of codified law can be compared to an iceberg, then the statutes enacted by federal and state lawmakers are only the tip. The vast body of the berg is comprised of a dizzying variety of rules and regulations promulgated by the agencies and offices of the vast federal bureaucracy, its counterparts in the 50 states, and the governmental entities at the county and municipal levels. From labor to discrimination to environmental protection to corporate accountability to zoning, a vast national bureaucracy — much of it staffed by lifetime appointees under civil service rules and union contracts — develops, disseminates and enforces countless rules and regulations. Not only does this bureaucracy mimic the legislatures in propagating such quasi-laws (which, of course, must comport with relevant constitutions and statutes); it also mimics the court system in conducting administrative hearings (typically subject to judicial review).
d. The Common Law:  Our federal and state constitutions, and the plethora of statutes, rules and regulations, are interpreted by our courts. At the federal level, the U.S. Constitution authorizes a court system which today is comprised of U.S. District (trial) Courts scattered across the country and staffed by about 1500 federal judges and magistrates; U.S. Courts of Appeals, divided into 11 geographic regions, plus one for the District of Columbia, and several specialized, mid-level appellate venues, such as the Claims Court; and on top the U.S. Supreme Court.  Most state court systems mirror the federal model. The thousands of decisions and opinions issued and published by these courts, particularly (but not exclusively) the supreme and mid-level appellate courts, are collectively called the American Common Law.  Researching and interpreting this Common Law is something that lawyers spend much of their time learning as law students and doing in practice.
Once upon a time in England, and a little later the United States, Australia, Canada, and many other former colonies of Great Britain, most law was to be found in published and collected court opinions, i.e., the Common Law. Today, as much, if not more, of the body of law is located in the statute books and regulatory manuals of the federal and state bureaucracies, as well as the books of local ordinances enacted by city councils, county commissioners and the like.
The major fields of law, as generally taught by law schools and recognized in legal treatises, are:
a. Contract Law:  Contracts are promises supported by mutual consideration. For example, when your university makes an offer of admission to a student-applicant and that applicant accepts your offer, a contract has been formed. Typically, the current college catalog becomes an implied part of that contract. Contract law was developed by the courts and contained in the common law, where much of it still resides. It is mainly a matter of state, rather than federal law, although the U.S. Constitution specifically insures the enforceability of contracts within U.S. boundaries, and your institution’s federal grants and student financial aid are subject to complex federal contract rules. An important statutory source of contract rules is the Uniform Commercial Code, which has been adopted with minor variations by all 50 states.
b.  Tort Law:  From the Norman French a “tort” roughly means a force or a hurt.  Tort law is personal injury law. With contract law, it may correctly be characterized as one of the two great areas of the common law on the civil (non-criminal) side. Today, as with contract law, statutes and regulations have stepped in to preempt much of what was once exclusively common (judge-made) law. The breadth of tort law is vast, including but not limited to assault and battery, auto accidents, defamation, harassment, intentional and negligent infliction of emotional distress, toxic torts, wrongful discharge and wrongful death. Statutes outlawing discrimination based on such factors as race and sex are in essence a subset of traditional tort law.
c.  Criminal Law:  Contract and tort law share the label “civil law.” They are primarily areas of private law enforcement. Litigants institute law suits, seeking money damages and, sometimes, court orders to establish their respective rights and recover their losses. Criminal law by contrast is the province of the public sector, i.e., the U.S. Department of Justice, the States Attorneys General, and local prosecutors and district attorneys. These officials in close cooperation with federal, state and local police and other law enforcement organizations, investigate crimes and prosecute criminals. Often the statutes that establish crimes and set penalties are intimately connected with tort law on the civil side. For example, when the celebrity O.J. Simpson was accused of murdering his ex-wife and her friend, he was first tried — and acquitted — of the crime of murder, and subsequently sued by the friend’s family for the tort of wrongful death. In the second trial, which applied not the test of “guilty beyond a reasonable doubt” but the diminished standard of “liable by a preponderance of the evidence,” the jury awarded the survivors substantial monetary damages.

4.  The Legal Environment of Academic Administration
Colleges and universities may be grouped into a variety of classifications. With regard to their degree-granting missions, institutions often are classed as: -Community and county colleges awarding two-year degrees such as Associate of Arts; -Four-year colleges granting baccalaureate degrees (B.A., B.S.); -Comprehensive universities granting baccalaureate and masters degrees; -Universities that grant all of the above plus Ph.D.s and/or other so-called terminal degrees such as the J.D. and M.D.
These classifications have legal significance. An institution cannot grant degrees that its accrediting organizations and/or state(s) of incorporation have not yet authorized or approved.
Of equal or greater legal significance is the corporate form the institution has taken. Three major forms define the bulk of American’s 5,000-plus post-secondary institutions today: -Public colleges and universities, organized, owned and operated by the states; -Private, not-for-profit colleges and universities; -Private, for-profit (sometimes called “proprietary”) companies, often either calling themselves universities, or operating subsidiaries under such names (e.g., Apollo Group, a publicly-traded corporation, parent to the University of Phoenix).
Variations on these three general classifications abound. For example, some universities are “state-affiliated,” usually meaning that they receive substantial support from their state legislatures, but operate in main, or even most, respects like private universities, notably in the area of private fund raising and auxiliary enterprises.
Where your institution falls on this spectrum will often determine which law(s) apply to any particular situation. If you work at a public college or university, certain significant provisions of the United States Constitution will directly impact personnel policies, as well as student rights. The Fourteenth Amendment, which requires states to extend due process and equal protection rights to all persons and all U.S. citizens, respectively, incorporates significant elements of the Bill of Rights (the first ten amendments) such as the freedoms of speech, association and religion, and such protections as a shield against unreasonable searches and seizures.
In the field of labor relations, private universities fall under the jurisdiction of the National Labor Relations Board, which since 1980 views most faculty as managerial employees who are not protected by the National Labor Relations Act. [See NLRB v. Yeshiva University, 444 U.S. 672 (U.S. Supreme Court, 1980).] Similarly, the NLRB more recently ruled that graduate assistants are primarily students, not employees, and therefore are not entitled to the federal law’s rights and protections in trying to join labor unions and engage in collective bargaining with their universities. [See Brown University, 342 NLRB No. 42 (National Labor Relations Board, 2004).]  By contrast, public (and most state-affiliated) colleges and universities look to their (often more union-friendly) state laws for guidance with regard to labor organizations. Consequently, unionized employees, including faculties, are to be found far more frequently in the public sector than in the private. (Unions are virtually unknown in the for-profit arena of higher education.)
In the realm of illegal discrimination, obligations are more likely to overlap, since federal and state laws tend to include both public and private employers under their regulatory tents. However, the Eleventh Amendment to the U.S. Constitution accords some measure of immunity to public employers with regard to some types of actions and forms of damages available against private entities. [See Fitzpatrick v. Bitzer, 427 U.S. 445 (U.S. Supreme Court, 1976).]   Likewise with regard to intellectual property, the preemptive powers of the federal government impose a general uniformity across the public-private chasm.
Whether a public or a private institution of higher learning, the typical university is comprised of several schools and/or colleges. Likewise many colleges contain subsidiary schools. Virtually all such institutions have a governing board, typically termed trustees in the private sector, and governors or some similar term in the public realm. Serving beneath a president will usually be her/his cabinet, composed of vice presidents. A typical cabinet of senior officers looks something like this:
-Vice President for Academic Affairs and Provost, usually the first among equals and the person who stands in when the president is incapacitated or absent on extended business travel.
-Vice President for Finance, also often known as the chief financial officer. This officer’s sphere of responsibilities can include such diverse realms as facilities, campus security, and environmental health and safety, as well such typical functions as payroll and management of the endowment.
-Vice President for Enrollment Management, to whom admissions, financial aid, and related offices report.
-Vice President for Institutional Advancement, formerly called “Development,” and typically subsuming public relations and alumni relations, as well as fund raising.
-Dean of Students and/or Vice President for Student Life (or Student Affairs), who deals with such student issues as food, housing, extracurricular activities, student disciplinary matters, and, increasingly, career counseling and job placement services. The trend in recent years has been for the Dean of Students to report to the Provost, thus drawing Academic Affairs and Student Affairs under a single tent.
Within the Academic Affairs Division, typically, a counsel of deans reports to and serves at the pleasure of the Provost/VP for Academic Affairs.  Each dean heads a school or college of the institution. Under each dean are academic departments, usually headed by department chairs.
The role of the department chair varies vastly from one institution to another, and even sometimes within the colleges and schools of a single university. Some chairs function as highly autonomous managers with significant budgetary and governance discretion, ranging from allocation of workload among the department’s faculty to promotion & tenure recommendations. At the opposite end of the spectrum, some chairs are little more than glorified secretaries, managing the day-to-day paperwork of the department. At this extreme, faculty of the department usually rotate the chair’s duties among themselves. In unionized environments, the chair may be a part of the bargaining unit, and in status be analogous to the “working foreman” who is so common in the construction trades. From a legal standpoint, where a particular chair falls on this spectrum will help determine whether her/his actions can bind the institution with regard to contracts and torts.

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