Al Qaeda Goes to College: First Book Review

http://lawprofessors.typepad.com/adjunctprofs/2009/02/book-review-h-1.html

February 21, 2009

Book Review Highlight Al-Qaeda Goes to College

On Jan. 23, 2009, Adjunct Prof Blog announced  that James Ottavio Castagnera, a well known lawyer and professor at Rider University, just wrote an exciting new book entitled “Al-Qaeda Goes To College.” Professor Castagnera was kind enough to provide me with an advance copy and I could not put it down. 
The book starts off by detailing how Professor Castagnera world began to change on 9-11. It then goes on to discuss the Anthrax scare that occurred at the Hamlton New Jersey Post Office, just a few miles a way from Rider University.    
The book’s research is excellent and it is full of detailed footnotes that others will undoubtedly find helpful.  Professor Castagnera central thesis, however, is on the impact  9-11 had on higher education. He views 9-11 as a double edge sword. On the one hand universities lost their innocence at great cost (increased governmental regulations, security costs etc.), but on the other hand universities also got a windfall because now they offer more programs and research on national security. Professor Castagnera believes that American universities have met the challenge of 9-11 and we are better off because of it. He compares 9-11 to WWII and states that America became a super power because of WWII.

The book goes on and covers such topics as universities’ roles in training counter-terrorism experts, particularly anthropologists working in Iraq and Afghanistan; bio-terrorism research on campuses; inflammatory critiques by the likes of Ward Churchill; the conspiracy theories advocated by some academics regarding 9/11; lawsuits against universities by terror victims trying to get settlements from countries like Iran by seizing archaeological artifacts in American universities; accused Islamists teaching at American colleges, like Sami al-Arian at USF.

This book not only presents well researched factual information, but it also contains legal analysis. For example with respect to the discharge of Professor Ward Churchill, Professor Castagnera outlines the First Amendment rights of public employees and in particular academic freedom. 

To my knowledge, this is the first book on how 9-11 has changed the world of higher education.  This book will be available around April 30th and you can pre-order it now from the above link. You will be glad that you did.

Mitchell H. Rubinstein

Read a sample chapter from my newest book, “Al Qaeda Goes to College”

http://www.historyplace.com/specials/writers/domestic-terrorists.htm

My new book is now available

http://www.greenwood.com/catalog/C36428.aspx

Why Reforming Education Is a Critical National Priority

Why Reforming American Education Is Crucial
By James Castagnera
Attorney at Large
Last week in this space, talking about how to win the war on terror, I asserted, “The American workforce must be better prepared to compete in the global marketplace. When we are through congratulating ourselves on electing our first black president, let’s recall that inner-city high school graduation rates still hover at or below 50 percent in most major metropolises. Colleges are over-priced and inefficiently labor-intensive. We are cranking out too many lawyers and too few engineers and scientists.”
Just as I am convinced that our national security against terrorists rests primarily on good police work, secure borders, and a sensible immigration policy, the proliferation of drug wars, inner-city gangs, and campus crazies persuades me that education — like energy — is a national security issue.  I offer two reasons why.
First, no democracy can feel itself either fair or safe, when it allows an inner-city proletariat to persist and fester from generation to generation.  According to the cover story in the December 8th TIME Magazine, “Young Americans are less likely than their parents were to finish high school.”  Adds the article’s authors, “This is an issue that is warping the nation’s economy and security.”  They are right.
A report issued in April by America’s Promise Alliance and reported on Fox News found high school graduation rates below 50% in America’s 50 largest cities.  According to Fox, “The report found troubling data on the prospects of urban public high school students getting to college. In Detroit’s public schools, 24.9 percent of the students graduated from high school, while 30.5 percent graduated in Indianapolis Public Schools and 34.1 percent received diplomas in the Cleveland Municipal City School District.”
Consider this:  the odds that you or I will be the victim of one of these thousands of high school dropouts is astronomically higher than the chance that one of us will be killed by an international terrorist.  Philadelphia annually averages about 400 homicides, for example.  While many of these killings are drug dealers or gang members taking out their rivals in jungle-land turf battles, the collateral damage in innocent citizens, including kids, is heartbreaking.
We need only glance across our southern border to Juarez, Mexico, to see how much worse it could become.  As early this year as February 28th, the Dallas News reported 72 drug-related murders in Juarez and worried that the violence could begin spilling over the porous border.  In Mexico, the killings include public officials who try to oppose the warring factions.  “Among the dead there: journalists, a city council member and a police chief on the job just seven hours before he was gunned down. Additionally, the cartels tried to assassinate a federal legislator. And efforts to clean up the force have stalled, as nobody wants the job of police chief. Local media self-censors to survive.”  A popular way for cartel killers to communicate their message is to hang a beheaded corpse from a highway overpass.
How great is the distance between Philadelphia and Juarez?  Thousands of miles as the crow flies, but perhaps only a few years away in terms of escalating violence, as our uneducated proletariats turn in increasing numbers to the only livelihood likely to pay them well.
For those who do graduate from high school and hope to come to college, the current financial crisis may pose an insurmountable barrier.  College students already are regularly graduating with five-figure “mortgages” on their diplomas.  Often, if mom and pop are footing the tuition bills, an actual second-mortgage on the family homestead is how the money is raised.  Now, even that undesirable method may be slipping away, as home equity shrinks and major lenders like City Bank flounder.  We’ll have to wait and see whether the college class of 2013, which will come to campus in September ’09, will be substantially smaller than this year’s crop of collegians.  I predict it will be.
Those who can’t afford college probably won’t be working either.  This morning’s Philadelphia Inquirer’s front page reports the highest unemployment rate in 34 years: 6.7% nationally.  More than 500,000 jobs, adds the Inky, evaporated just last month.
More than 100 years ago, the famous defense attorney Clarence Darrow claimed, “There are more people go to jail in hard times than in good times — few people comparatively go to jail except when they are hard up. They go to jail because they have no other place to go. They may not know why, but it is true all the same. People are not more wicked in hard times. That is not the reason. The fact is true all over the world that in hard times more people go to jail than in good times, and in winter more people go to jail than in summer….  The people who go to jail are almost always poor people — people who have no other place to live first and last.”
The United States has the highest incarceration rate in the world, more than 700 people per 100,000.  Only Russia, some of the other states of the former USSR, and a couple of Caribbean countries come close.  Are we stronger on law and order than our sister democracies?  Or are we failing to provide alternatives to crime?
And where lies the greater threat to our security, Afghanistan or the city nearest your home?
[Jim Castagnera, formerly of Jim Thorpe, is a Philadelphia lawyer and writer.  His 17th book, Al Qaeda Goes to College, will be published in the spring by Praeger.]

Serialization: Why My Dad Hates Ice Cream (2)

åChapter Two    
     The first clue that Claire and Mom and I had that Dennis J,

Lustig was about to become a character in our little family drama

came during the after©dinner conversation that occurred around our

small oak kitchen table one rainy and raw evening in late January

1985.  Dinner had been chicken, mashed potatoes and peas that Mom

had picked up from a new place that had just opened in the Lawrence

Park Shopping Center called Boston Chicken,  She had stopped there

on her way home from work, then warmed the meal up in our microwave

oven when she got home.  She had been the last one home that

evening and her silence through most of the meal was a sure sign

that she was tired.  I think it was a Thursday.  That late in the

week Mom usually was just hanging on and hoping for a quiet

weekend.
      Desert was Ben & Jerry’s Chunky Monkey ice cream, Archie’s

personal favorite.  A half gallon had been his contribution to the

meal.  He had picked it up on his was home from a meeting in New

Hope, a tourist town in southern Bucks County, not very many miles

up the Delaware River to the northeast of Philadelphia.
      Archie carefully scooped the last residue of melted ice cream

from the bottom of his bowl, followed it with a sip of coffee from

the mug that he lifted to his full, pink lips and then placed back

on the table.  Then he cleared his throat.  I was too young and

self©absorbed back then to recognize this as Pop’s little ritual

before making some kind of momentous‘Ä%0*†(†(∞

---

∞

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‘åannouncement to the rest of the family. (Two years later, when he

went through the same routine before announcing that we were moving

to San Diego, thus ruining my senior year in high school, I at

least was forewarned by the same little routine, which by then I

was attuned to.)  Mom, as I say, was beat and so wasn’t picking up

on Archie’s body language either.
    Seeing that Claire and I had just continued chatting about the

latest middle school and high school gossip, while Mom remained

quietly in her own little world ©©© probably mulling over some

problem she should have left back at the office ©©© Arch cleared

his throat again, a little louder this time.
     Satisfied that he finally had our attention, he said,”Your

Dad’s going to be in the √
√Inquirerƒ
ƒ tomorrow morning.”  Saying ‘your

dad’ made this piece of news sound as if it was directed to Claire

and me.  But I noticed Pop cast a nervous glance in Mom’s

direction.  The sheepishness of that glance tipped me to anticipate

that Mom was not going to welcome with open arms the old man’s

apparent run at middle©aged celebrityship.
      Archie didn’t say anything more for the moment.  I guess he

was waiting for one of us to rise to the bait.  But Mom just stared

at him from behind the rim of her own mug, which was poised in

front of her mouth.  As I said, I was on my guard because of the

way Arch was looking at Mom.  I guess maybe Claire had picked up

the same storm signals I had.  And so we both sat quietly, waiting

for the second shoe to fall.
‘’0*†(†(∞

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∞

---

‘å      In a matter of seconds, down it came.  “I agreed to be co™counsel in that Lustig case I told you about.”  This time the

comment was directed at its true target… Mom.  Claire and I were

just being used by Archie the way he often used us in those days,

as shields to hide behind, when he knew that if he and Mom were

having the same conversation alone in their bedroom, she’d rip into

him.
     Mom put down her mug ever so slowly and wearily, and let out

a long sigh.  For a couple more seconds I think we all thought she

again was going to remain silent.  In those seconds, old Arch must

have been casting about in that big cantelope©head of his for his

next line.
     But at last she said, looking him squarely in the eyes, “I

thought we agreed that you’re too busy to take on any charity

work.”
     Breaking the hold Mom’s eyes had on his own, Archie looked

down into the depths of his coffee mug… the one that read “Life

should be led like a cavalry charge.”  A little more throat

clearing ensued.
     “Karen, I know.  But Larry Berger called again yesterday and

asked me to just drive up to his office and meet the client and

confer on the matter.  Just give him my views on it.”
     Archie gently touched the handle of the white porcelain mug

with his pudgy forefinger, nudging it slowly, absent©mindedly away

from him.‘Ä%     0*†(†(∞

---

∞

---

‘å     “One thing just led to another,” he continued slowly,

deliberately, and nervously.  “I liked Lustig.  And I owe Larry.

Anyway, I stayed for lunch.  And then when we got back to Larry’s

office, there was this reporter waiting for us from the √
√Inquirerƒ
ƒ

and she wanted to know if we were the attorneys who were

representing Lustig in what would be the first AIDS discrimination

case in Bucks County… heck, even in Greater Philadelphia,” he

added with emphasis, defensively.
    Mom interrupted.  “So let me guess:  good ol’ Larry looked at

you and you looked at that reporter and said, ‘Oh, yes, that’s us.’

That about it, Arch?”
     If Mom had brought a balloon out from behind her chair at that

moment and slowly let the air hiss out of it, the effect could not

have been more graphic.  You could almost hear the little fella

that lives inside the old man’s great big round head scrambling

around in there, frantically searching for the right response.  One

choice, I guess, was self©righteous anger.. maybe even the old push

back from the table followed by the trusty stomp out of the room

and into the study, capped by the resolute door slam.  The trouble

with that one was that, not only was it out of character for Archie

©©© whose mediocrity as a lawyer stemmed not from any lack of

brains or knowledge, but from a natural timidity that ill©suited

him for his chosen profession ©©© but also it left him trapped in

his own fortress later on in the evening, when he would really want

to be up in bed with a beer and a sandwich.‘Ä%
0*†(†(∞

---

∞

---

‘å   Consequently he rejected the dramatic in favor of the

sympathetic option.  “Karen, if you only could have been there and

met Denny Lustig.  Then you’d know this is the right thing to do.

It’s what any decent, caring attorney in this town ought to do.”

Well, there it was… the old man’s recent obscession with the

declining integrity and social standing of his profession was on

the table. The lawyer jokes that Claire and I so cherished, all the

bad press about attorneys which was to get so much worse in the

decade that lay ahead, plus Archie’s own struggle to gain a small

measure of recognition in his community and, yes, in his own house

I suppose, had combined and led him to take the plunge into the

Lustig case that rainy winter day.    
      Then Mom said something that came of her fatigue and

frustration, the first built up over the past week, the second

built up over the 18 years she and Dad had been married by then.

“Every caring attorney in this town isn’t struggling to barely make

$30,000 in a good year, Archie.  But you are.  How many hours will

this tilting at your personal little windmill cost us?  Look, we

talked about this.  We said we wanted Claire in Episcopal this

fall.  Where did all that go after lunch today? 
What happened to caring about your own family?” 
     Mom’s voice shook a little, though she never raised it during

that little speech.  She had never before raised the issue of

Archie being a poor provider in front of us kids before, and I

could see from the look on her face that she regretted it as soon

as she said it.‘’
[1]0*†(†(∞

---

∞

---

‘å     “I care about this family,” was all Archie replied, this

nearly in a whisper.
      In the end it was Mom who pushed back her chair, not angrily

but wearily, and walked away from the table, leaving the rest of us

just sitting there in silence. 
      It was Pop who broke the silence, looking very deliberately

first at Claire and then at me.  “I do care about you guys,” he

said, a hook of emotion catching the words in his throat.  “This

case will actually help my practice.  I just wish I could make your

Mom see that.”  He seemed to be waiting for a response, some word

of approval or encouragement from his kids, but we were a little

too startled by all that had happened in the past sixty seconds to

say anything. So he too got up and left the table, retreating to

his ‘sanctum sanctorum.’  Claire and I heard the door close quietly

behind him. 
      Claire and I cleared the table, rinsed the dishes and put

them into the dishwasher, all the while being uncharacteristically

unconversational for two teenagers. 
    Then we went up to our rooms.  Later that evening, when I made

my last trip to the bathroom before hitting the sack, I saw that

the door of the master bedroom was open only a couple of inches. 

I glimpsed Mom, sound asleep in the flickering glow of the TV tube.

She was alone in the bed.

‘’
0*†(†(∞

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∞

---

‘åChapter Three
     The next morning ©©© Friday ©©© my alarm went off and I was

out of bed half an hour sooner than usual.  I slipped downstairs as

quietly as I could and out the front door.  The rain had stopped

sometime during the night and the temperature had dropped, so that

a bitter wind waited to wish me good morning.  I gritted my teeth

and darted down the steps and onto the black macadam driveway, only

to discover, too late to spare my bedroom slippers from the puddles

that hadn’t quite iced over, that the newspaper wasn’t there

waiting for me.
     I looked at the front lawn and down the drive into the street,

my eyes squinting against the knifing winter wind.  My old

terrycloth robe flapped above and below its cloth belt.  There was

no Inquirer to be seen on our property, though I noted that both

our neighbors had received theirs.  For a furtive instant I thought

to tiptoe over to one or another of their drives and ‘borrow’ a

paper.  But, thinking quickly that I might be spotted (or at the

very least, suspected), I turned and hustled back into our house.
     I closed the heavy oak door behind me and then heard the soft

shuffling of feet coming from the kitchen.  My own feet squished a

little as I padded out there myself, rounding the corner into the

doorway in time to see Archie’s back disappear onto the enclosed

back porch Mom called our ‘sun room.’
     I walked across the kitchen, passed the round oak table where

we McAdoos ate most of our meals together, and stepped ‘Ä%

0*†(†(∞

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∞

---

‘åquietly down the single step into the sun room.  Pop sat at the

little cast iron and glass coffee table a few feet away with the

morning paper spread out in front of him.  He sipped steaming

coffee from his big white mug with the cavalry charge motto as he

gazed intently at the right hand page of the paper lying in front

of him.  He had a sort of contented smile on his face, his lips

moved ever so slightly as he read, and he never even noticed me

enter the room.
     Tiptoeing around behind the rattan sofa where Pop was sitting,

I bent over and read from over his right shoulder.  The article was

at the top of page B1, which made it the lead article in the

Inquirer’s business section.  The headline, which covered the two

columns on the right hand side of the page, read “Former Night

Manager Sues Popular Bucks County Restaurant for AIDS

Discrimination.”  The byline said “Jane Putnam, Inquirer Staff

Reporter.”
     The piece explained how Dennis Lustig of New Hope, who had

been first a cook for two years, then night manager of Freeman’s

Farm Dairy Bar and Restaurant for another three and a half, claimed

that he had been fired in early December, after he reported to the

owners  of the restaurant that his three©day absence was HIV

related. The article went on to quote “Philadelphia attorney

Archibald McAdoo” to the effect that, “This isn’t exactly a

lawsuit.  The Pennsylvania Human Relations Act, under which we are

initiating this charge of discrimination, requires that Mr. Lustig‘Ä%
0*†(†(∞

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∞

---

‘
first put his case before the state’s human relations commission

for investigation. 
     “However, unless the agency acts promptly to remedy this clear

injustice, Mr. Berger and I intend to request a ‘right to sue’

letter and take our client’s case into the Bucks County Court of

Common Pleas by late summer.”
     The story pointed out that “Attorneys Berger and McAdoo have

agreed to represent Lustig for free at the request of the AIDS Law

Project of Philadelphia, which organization will provide co©counsel

for the case.  The project’s executive director, Marsha Milhouse,

added, ‘This is a test case… a case of first impression for the

PHRC and ultimately, as we expect, for the courts.  Therefore, we

are girding ourselves for a long fight.  In the end, we expect to

win and to make important new law in the process.”
      “A long fight”, I thought.  “Just what Mom wants to hear.”
      I must have mumbled the thought out loud, because Archie
jumped a little and turned around so swiftly that he spilled coffee

onto the newspaper, spattering the bottom half of his precious

claim to immortality.
     “Ned, what the devil are you doing there?” he squawked at me

in the near©falsetto his voice rose to when he was excited or

upset.
     “Sorry, Pop,” I quickly replied. “I just didn’t want to

disturb you.”  I shuffled to my left and out from behind the couch.

Archie turned back to his newspaper to find the litle puddles of‘Ä%0*†(†(∞

---

∞

---

‘
spilled coffee spreading like microorganisms in the porous

newsprint. 
      “Look what you made me do, Ned,” he said in a voice about an

octave lower, looking across his left shoulder at me as I continued

my retreat out of the room and back to the kitchen.
     “Hey, Pop,” I replied, plucking up a teenager’s smart©mouthed

courage, “you might be better off covering that whole article with

coffee.  Especially that part about a long fight ahead.”
     The best defense really is a good offense, as I’ve confirmed

in my own legal practice a couple of times already.  Archie’s voice

immediately lost its angry edge.  “What do you mean?” he asked, but

I think he already knew.  He was just hoping against hope that the

problem with Mom wasn’t so serious that even his 16©year©old whelp

recognized it so plainly.
     “Mom’s not going to like that part of it,” I responded,

confirming Archie’s own fear.
     His whole round face, pock marked like a cantelope skin from

teenage acne, seemed to droop slightly, especially his round,

watery blue eyes, confessing his concern about how he was going to

see his new commitment through and continue to live in reasonable

harmony with his wife, my mother.
     He turned back to the article and I fancied he was considering

my suggestion of dumping the rest of his coffee onto the newspaper.
     I turned round and stepped through the doorway into the

kitchen, almost bumping into Mom.  I was as tall as she was already

back then, even though she was of above average height for a woman.‘’[1]0*†(†(∞

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∞

---

‘
(Archie used to call her “my ultimate skinny woman”, which she

pretty much was.)  Our eyes met and hers seemed as tired as they

had seemed the evening before, as if she had not slept, or at least

not very well.  Her curly red hair was a little wild looking, like

she hadn’t combed it yet.  Without a word she squeezed past me in

the doorway and joined Archie out in the sun room.
     I went back to the center hall, up the stairs and headed for

the bathroom.  I was about to go into the bathroom when Claire’s

door opened and she said, “Hey, Ned.”  It was my turn to be a

little startled.  I turned round and saw her head, the hair every

bit as red and curly as Mom’s, poking out of her doorway.
    “Ned, what’s up?  Did Dad make the paper?”
    “Oh, yeah,” I replied.  “He’s in there, alright.  Page one of

the business section.  I’d say he made it big time.”
    “What do you think Mom’s gonna do?” she inquired, opening her

bedroom door a little bit wider, so that I could see she was

wearing the new pink robe she’d received for Christmas.
     “Don’t know,” I said.  “But she’s down in the sun room with

ol’ Arch right now.  I guess she’s just about had time to read the

article.”
     At that instant we heard a loud bang, which we both had come

to recognize as the sun room door slamming shut, as it sometimes

did in the summertime, when all the room’s windows would be wide

open and a sudden summer breeze might bang it closed.  The next

sounds were footsteps coming quickly through the center hall and‘Ä%0*†(†(∞

---

∞

---

‘
starting up the stairs, footsteps too quick and light to be

Archie’s.  Mom was headed back upstairs.
     The last thing I saw, before I closed and locked the bathroom

door, was Claire quickly closing her bedroom door.  From inside the

bathroom, just a wall away from the master bedroom, I heard Mom

enter that chamber and slam that door behind her, too.
     I busied myself with showering and brushing my teeth and blow©

drying my hair.  Oddly, unlike most school days, nobody banged on

the door, trying to rush me along in order to take a turn in the

only bathroom on the second floor of our three bedroom colonial.
     When I was all through with my morning ‘toilet’, as they used

to say in olden days, I poked my head out of the bathroom,

ascertained that the coast was clear and scooted down the hall and

into my bedroom  to get dressed.  Then I walked quietly downstairs

and back to the kitchen, where I encounterd Claire for the second

time.  She pointed toward the sunroom.  Looking through the glass

of the still©closed door, I saw Archie sitting by himself on the

sofa, turned slightly to the right, so that his face wasn’t visible

from where Claire and I stood.  I went to the refrigerator and

looked for the brown bag with my lunch in it.
    “No lunches,” Claire declared quietly.
    “Guess we’re buying today, huh?” I responded.
    “Yeh, guess so,” she said.  “Mom’s already gone.  She must have

forgot to make them.”
     “Think we ought to say goodbye to Dad?” she inquired.‘Ä%0*†(†(∞

---

∞

---

‘å     I thought about that for a second. “Nope. I think we better

leave him alone.  You got lunch money, Sis?”
     “I’m okay,” she said.  “Thanks.”
      We shouldered our backpacks and headed for the front door.
I don’t know what Claire’s thoughts were.  But I was thinking,

“This is gonna be a long year.”

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.

A Brief History of Higher Education (part 3)

When and if the shakeout is complete, higher education will not be populated exclusively by e-educators. Nor will the landscape of higher education boast only the largest and wealthiest brick-and-mortar institutions. Rather, as in the past, we should anticipate a mix of liberal arts colleges, land-grant universities, and wealthy private universities, including megaversities, coexisting in rationalized competition with the e-educators and other for-profit entrants of this 21st century wave of institution building.
A mature industry may be defined as, “An industry that has passed both the emerging and the growth phases of industry growth. Earnings and sales grow slower in mature industries than in growth and emerging industries.”(http://financial-dictionary.thefreedictionary.com/Mature+Industry) American higher education is in the midst of a profound transformation. Some leaders in higher education contend that it is a mature industry, which must co-exist and compete in the global marketplace, while others argue that its primary role remains as ever a public responsibility to create good citizens.   For some, like Arthur Levine, president of Teacher’s College at Columbia University, college and university education as we know it is a relic of the past, irrelevant to the economic developments and desires for individual career advancement in the global economy. The real business of the “mature industry” of higher education is to serve the marketplace of information economies. This, he claims, can best be done through on-line technology by the profit-making sector. Quaint campuses, classroom lectures, and a community of scholars are irrelevant to the business of education.
For others, higher education has a different purpose, and an historical tradition, that is tied to education for effective citizenship. In this view, higher education should have a central role to play in the health of our democracy but has been deficient in rebuilding the civic life of the country. Our institutions of higher education were shaped in the era following WW II that is not readily adaptable to meeting the need of transforming civic life. The structure, organization, administration, and academic culture of campuses embraced science and technology, emphasized a cult of objectivity and detachment, and elevated the role of the scientifically educated expert over ordinary citizens in public affairs. This ethos of professionalism and expertise that defined higher education’s response to the national crisis of the Cold War now contributes to public disillusionment with institutions that represent and legitimize a system that no longer addresses the most pressing national needs. Ivy towers, inert knowledge, and credentialed students are irrelevant to the civic purpose of education. (Saltmarsh)
Most colleges and universities have attempted to take a middle ground, reforming antiquated practices and encrusted procedures sufficiently to meet the more competitive market of the millennium, while retaining many vestiges of the venerable past, such as faculty tenure and academic freedom. Critics complain that reform for the most part has been thus far a case of too little, too late.
Colleges and universities provide a setting for the contemplative life. The word “school” is derived from the Greek schole, meaning leisure. Efficiency is not always prized on campus, and this spirit has translated to fiscal matters. Bowen (1980) captured the spendthrift philosophy of higher education in his “revenue theory of cost”: “Each institution raises all the money it can” and “spends all it raises” (p. 20).

College costs have escalated for reasons rooted primarily in organizational culture and market forces. Institutions of higher education often have defined quality in terms of resources acquired rather than results achieved (Guskin,1994; Lovett, 2005). Colleges and universities have survived profligacy through monopolistic competition, achieving sufficient differentiation from other institutions by geographic location and programs (Bowen, 1980). But high technology, which supplies the capacity to deliver academic programs at a distance from the physical campus, is eroding the product differentiation so long enjoyed by traditional colleges and universities.
The pressure on institutions to control costs has likely never been greater. Tuition at four-year public institutions in the 2003-04 academic year increased at the highest rate in three decades, an average of 14 percent more than the prior year (Farelle, 2003). State appropriations to public colleges and universities fell 2.1 percent from the 2002-03 fiscal year to the 2003-04 fiscal year–the first decline in 11 years (Hebel, 2004). Colleges and universities, particularly private institutions, are only now recovering from endowment losses in 2002. The National Association of College and University Business Officers’ study of endowment for that year showed that institutions of higher education lost six percent on their investments, marking the first time investments had declined for two consecutive years since 1974 (Lyons, 2003). In company with other employers, colleges and universities struggle with the escalating cost of health care for employees. Health insurance premiums rose 13.9 percent in 2003, the third consecutive year of double-digit increases (Basinger, 2003).
Institutions of higher education confront many barriers to cost control. Perhaps the most basic impediment is poor cost information. Progress toward improved costing for higher education was advanced in the 1970s by the work of the National Center for Higher Education Management Systems (NCHEMS), but the cost systems proposed by NCHEMS largely were abandoned in the affluence of the 1980s (Turk, 1992). Day (1993) noted “no general consensus on costing methodology in higher education” (p. 13). Even now internal management reports focus on salaries, travel, and research costs, and generally ignore such indirect costs as facilities and administration.
Higher education is also a labor-intensive endeavor, making gains in productivity more difficult and exposing institutions to the spiral of benefit costs. Moreover, consensus management continues to pervade academic administration and bring inefficiency to the decision-making process (Zemsky and Massy, 1990)(Adams).
Faced with these pressures, colleges and universities are: -Competing harder than ever for students, as well as grants and gifts; -Seeking to control and exploit intellectual property that, once upon a time, was left to faculty to promulgate as they saw fit; -Growing and expanding, often at the expense of competing institutions and for-profit providers of post-secondary education; -Streamlining operations where possible, such as by bringing Student Life divisions under the umbrellas of Academic Affairs; hiring more adjunct and non-tenure-track full-time faculty; offering accelerated degree programs, sometimes at the expense of traditional core requirements; and
-Being all things to all potential students, such as by offering on-line courses, professional certifications, and remote-site alternative facilities.

History of Higher Education (Part 2)

The fifth wave is breaking on global shores. “The age of the Internet and other new media forms is giving rise to a new wave of institution building, right before our eyes . . . . Ours is an extraordinary moment in history” (Cox 2000, p. 17). What is it we may expect to observe and experience among the phenomena of this new era? Among the main indicia of this new wave are the following:
Some observers predict a shakeout of weaker institutions as the current expansion leads inevitably to a concomitant contraction. Others have noted the persistence of even the weakest among first-wave colleges, as the following article illustrates.
[Start of Box]

The Mice That Roar: Small, Sectarian Colleges Resist
Efforts to Extinguish Them
By Jim Castagnera
The Greentree Gazette, May 2007
I first met Jim Noseworthy early in the present decade at a workshop on serving disabled students.  The program was put on by the University of New Hampshire’s extension division at a hotel outside Washington, D.C.  Serendipity put the Doctor of Ministry, whose prominent proboscis fits his surname, at the same table as I.  We lunched together and hit it off, and after that kept in sporadic contact.
In August 2003, after sharing a recent op-ed piece of mine with Jim, he wrote back to me, “I have left the United Methodist Board of Higher Education and Ministry and now serve as president of United Methodist-related Hiwasee College in Madisonville, Tennessee.”  His missive on Hiwassee College stationery continued, “I moved in February to a situation which is both challenging and delightful.  I am glad to be back on campus and working with such marvelous individuals as we shape the future of this two-year college.”
If the Southern Association of Colleges and Schools gets its way, Hiwassee College has no future.
SACS’s Commission on Colleges is the accrediting body for higher education institutions in 11 southern states, including Tennessee.  Senior Fellow Jon Fuller of the National Association of Colleges and Universities describes SACS as “the most rigid and bureaucratic of the six national accrediting organizations.”  He adds that SACS has a tough task, because, “The South has more fragile institutions as a percentage of its higher education stock than any other region of the country.”
Absent the SACS imprimatur a college is cut off from federal financial aid funds.  For a college like Hiwassee, whose fewer-than-500 rural students almost all rely on substantial financial aid, such a sanction is fatal.  SACS, however, is finding that Hiwassee is hard to kill.
Hiwassee, which awards associate degrees, was first accredited by SACS in 1958.  That accreditation was confirmed most recently in 2000.  The Reaffirmation Committee noted that at the millennium Hiwassee had many “financial challenges.”  The committee’s report cited deferred maintenance, projected-revenue shortfalls, and inter-fund borrowing among those “challenges.”  SACS required a follow-up report.  When that document failed to meet the accreditor’s criteria, Hiwassee was issued a warning and required to submit yet another 12-month status report.  In December 2002, following review of this second report, SACS placed Hiwassee on probation.  The beleaguered college submitted its third report in December 2003, Meanwhile, a so-called Special Committee conducted a site visit to the Monroe County campus.
The college’s accreditation crisis came to a head on January 16, 2004, the date on a SACS letter which informed the Reverend Noseworthy and his staff, “With its upcoming review in December 2004, your institution will have exhausted its probationary status and its period of continued accreditation for good cause.  At that time, the institution must be determined to be in compliance with all of the Principles of Accreditation or be removed from membership.”  Yet another Special Committee visited Hiwassee in mid-October 2004.  The committee’s report was damning.  On December 4th Hiwassee defended itself at a Compliance Committee meeting, but the committee voted to remove accreditation.  On February 24, 2005, an Appeals Committee affirmed academic capital punishment for Hiwassee.
However, reports of Hiwassee’s demise proved premature.  The college took its case to the federal courts.  On March 22, 2005, Judge Thomas Vartan of the U.S. District Court for Eastern Tennessee issued a temporary restraining order, restoring Hiwassee’s accreditation.  “This is good news,” Rev. Noseworthy modestly understated this early victory.  The case then was transferred to the federal court for Northern Georgia, home to SACS headquarters.
On February 5, 2007, following extensive pre-trial discovery and a hearing, Senior District Judge Owen Forrester issued his ruling.  In many aspects his honor’s 18-page decision goes against Hiwassee.  For example, he rejects the college’s contention that “the entanglement between the (U.S.) Department of Education and SACS in its role as an accrediting agency under the Higher Education Act” makes SACS a “state actor” subject to the 14th Amendment’s “due process” clause.  On the other hand, Judge Forrester finds that SACS must be held to common-law principles of fair play.
Having so held, his honor goes on to conclude that a conflict of interest was created when Appeals Committee member Ann McNut suffered a family emergency and was replaced by Jimmy Goodson, a voting member of the Commission on Colleges.  Since he had already voted to withdraw Hiwassee’s accreditation, ruled Judge Forrester, “Mr. Goodson did have a conflict of interest and should not have served on the appeals panel.”
Comments President Noseworthy, “We have prevailed on one of the several issues of our case.”  However, Judge Forrester found in favor of SACS on many another issue.  More ominous is the district judge’s observation that “it is significant to the court that Hiwassee has never front-on challenged the ultimate decision of SACS that Hiwassee failed to come into compliance….” This bit of dicta may prefigure the ultimate outcome of the case, which remains pending as this article is written.  On March 16th, Jim Noseworthy wrote to me, “We are awaiting additional action by the judge in the case….” With characteristic aplomb, reminiscent of his 2003 letter, he added, “Hiwassee is a great place to be!”
Hiwassee College is not the only great little place under fire for financial instability.  SACS has also been gunning for Edward Waters College in Jacksonville.  In 2005 the historically black institution, like Hiwassee, won an injunction in federal court, staving off implementation of the accrediting agency’s decision to withdraw recognition.  News photos depicted some of the school’s 900 students marching with signs that said, “EWC must survive!”  Fuller of NAICU commented, “A new chapter is opened.  It’s going to require accreditors to question some of their procedures.”
Elsewhere it’s not accreditors but donors who are putting pressure on the Lilliputians of our industry to reform or perish.  For instance recent reports out of Omaha, Nebraska, tell of Howard L. Hawks, a major donor to both Midland Lutheran College and nearby Dana College, who has advised the two tiny schools to merge duplicative academic and administrative functions or lose his support.
These developments beg the question, “Do such small-enrollment, under-endowed private colleges have a place in the highly competitive, globalized higher education arena?”  I asked that question of NAICU’s Jon Fuller.  He explained that from Eastern Kentucky’s Pikesville College to New Jersey’s Bloomfield College, these small schools serve local communities “where people grow up with a limited sense of what’s possible.”  In other words, absent the Bloomfields, Pikevilles, and Hiwassees, many of these minority and/or rural youngsters would never go to college.
Fuller adds that both federal and accreditation standards use financial stability as a place-holder for quality education, since the latter is difficult to measure.  “The fed doesn’t want to have to clean up if a college closes suddenly.  What isn’t considered is that many of these schools have been around 100 or 150 years, and I doubt they were ever any less fragile than they are today.  Yet they always have a hard time meeting such standards.”
I suggested to Fuller that the pluckiness of these colleges reminds me of the tiny nation in the Peter Sellers film, “The Mouse that Roared.”  He retorted, “They remind me of bumble bees.  Measure the wingspan and the bumble bee shouldn’t be able to fly.  Since it does fly, there must be other factors we are failing to measure.”
With regard to the Hiwassees of our world, Fuller cited “deep loyalty” from alumni and “faith communities,” a willingness to sacrifice on the parts of administrators, faculty and even students, and — perhaps most significant where the likes of Jim Noseworthy and Hiwassee are concerned —- “an ethic which says, attend to the needs of today and somehow tomorrow will take care of itself.”
Concludes Fuller, “At a time when the Spellings Commission is concerned with degree completion and eight Asian and European nations boast higher percentages of college graduates than the U.S., it’s hard to understand why anyone would want to mess with these colleges.”
Source:  The Greentree Gazette, May 2007 (Reprinted with permission of the Greentree Gazette: The Business Magazine of Higher Education.)

A Brief History of Higher Education: Part One

Origins of the American System of Higher Education
Four distinct epochs or waves can be discerned in the history of higher education: In the 85 years between the Declaration of Independence and the Civil War, some 800 liberal arts colleges sprang up across the United States. A typical example is Franklin & Marshall College, which owes half its name to a modest amount of seed money donated by the great Benjamin Franklin in 1787. Another example is Case Western Reserve University, today a Research-One institution, which first saw the light of learning as Western Reserve Academy. “The undergraduate college took . . . . the essential step necessary for a broad education for general citizenship . . . . These institutions were of a size and scale that could be created by a group of private individuals—not requiring great fortunes or state support” (Cox 2000, p. 14).
The end of the Civil War until the turn of the last century was the era of the great land-grant institutions. This expansion of higher education led to the first shakeout. “By 1900, only 180 of those first 800 small colleges remained active; larger, subsidized state universities consumed market share by offering more educational services, subsidized prices, and often more pragmatic and career-oriented curricula” (Cox 2000, p. 14).
Around the turn of the last century, the third great wave broke upon the shores of higher learning. Wealthy industrialists, such as John D. Rockefeller (The University of Chicago), Andrew Carnegie (Carnegie Mellon University), Cornelius Vanderbilt (Vanderbilt University), and Leland Stanford (Stanford University) founded high-quality, private universities. The institutions were often world-class in their curricula, faculty, and architecture, importing many of these elements from their great European counterparts. Thus, with Chicago, “Cambridge inspired the architecture, while Berlin inspired the pedagogy and faculty structure” (Cox 2000, p. 14).
Fast forward yet another 50 years and we see the GI Bill and the postwar technology boom, fueled in part by the Cold War, driving the creation of the “megaversity.” This term is commonly used to describe a variety of large institutions, all of which share at least the following characteristics: faculty numbering in the thousands and student bodies numbering in the tens of thousands; sprawling and/or multiple campuses containing a large number of undergraduate, graduate, and professional schools and colleges; and a large and cumbersome administrative bureaucracy overseeing these complex operations. (We have also seen the proliferation and maturation of the community college. However, this book, by and large, will focus principally upon four-year institutions, albeit some case citations will concern community colleges.)

How Do You Like the 21st Century So Far?

On Tuesday, November 4th, we Americans made history.  As Journalist Bill Moyers pointed out on NPR, the albatross of racism has been lifted from around many American necks.  I include myself in this category.  I also feel as if the 2008 national election is the first bright spot in a dismal decade.
The new century was hardly underway when the September 11, 2001, terrorist attacks bloodily and dramatically signaled the end of America’s brief illusion that, as the world’s sole superpower at the end of the Cold War, Uncle Sam could do anything he liked and get away with it.
A strong case can be made that we over-reacted to the Nine/Eleven attacks.  Launching a two-front war from which we have been unable to extricate ourselves is deemed by many Americans to have been a colossal blunder.  If you believe that fighting terrorism is essentially police work, and that our military forces are creating more radical Islamists than they are killing, then the Afghan and Iraqi wars were a bad idea.  If, on the other hand, you believe that America needs a stable Middle East to secure vital oil supplies, then the Bush Administration’s gross underestimate of the price in lives in treasure required to pacify the region makes the Afghan and Iraqi wars a bad idea.
More troubling to me is the financial crisis precipitated by Wall Street’s greed and Washington’s unwillingness to regulate the financial world’s shenanigans.  As Moyers said the other night on NPR’s “All Things Considered,” since the Bush people have no respect for federal regulation of business, they saw no reason to dampen the redistribution of wealth to the financial/power elite that occurred over the past eight years.  The Bush tax cuts contributed mightily to this largesse for the elite.  The War on Terror also contributed mightily.  For example, Halliburton, which made Dick Cheney a multi-multi-millionaire between Bush I and Bush II, has been rewarded with billions in defense contracts since the start of hostilities.  What the tax cuts and war didn’t put in the top five-percent’s pockets, they stole.
I don’t know what kind of a president Obama will make.  Two years ago I wrote him off as a flash in the pan.  A year ago I criticized his lack of national-service experience.  As Senator Joe Lieberman said at the Republican National Convention last summer, Obama is a talented man of great potential.  But, as Lieberman added, the ability to make an inspiring speech is no substitute for experience.
That being said, his themes of “hope” and “Yes, we can” are sorely needed now.  He seems to be surrounding himself with the wealth of experience he himself lacks, starting with Joe Biden.  By the time this column appears, he most likely will have picked a Treasury Secretary of comparable stature.  Jack Kennedy was younger, when elected, than Obama is now.  JFK was tested and made some early blunders at his first summit with the Soviet Union’s leader and at the Bay of Pigs.  But by October 1962 he was sufficiently seasoned to surmount the Cuban Missile Crisis.  Obama, too, is a quick study and a gutsy guy.
Even if he turns out to be a mediocre president, his election by a wide majority marks a departure from America’s centuries of racism.  It validates and renews Jefferson’s claim that America is the last, best hope of the world.  It supports our claim that our greatest strength is our diversity.
The challenges facing President Obama and the rest of us are daunting.  The current financial crisis will subside.  The challenge of a global marketplace occupied by an ascendant China, a resurgent Russia, and other energetic and powerful economic competitors is with us for good.  Islamic militants probably won’t quit until they succeed in detonating a nuclear device on US soil, or we succeed in killing them, while also making peace with the moderate majority of the Muslim world.  We who work in education must somehow manage to increase the demoralizing high school graduation rates of our largest cities, while providing our college students with all the skills they need to compete in a world where young Americans are no longer guaranteed to do better than their parents.
The half century that has comprised most of this writer’s life, from the late 1940s down to the turn of the new century, was a sort of Golden Age in the USA.  Getting by was a piece of cake.  Relative affluence was possible for the vast majority.  The Cold War with its doctrine of Mutually Assured Destruction created a sort of “Pax Atomica” interrupted relatively rarely by low-level conflicts in Asia and elsewhere.  Ronald Reagan was the last US president to know what was wanted: “Here’s my strategy on the Cold War: We win, they lose.”
Since 1988, our brief ascendancy to sole superpower-ship has plunged into confusion, greed, and blind stupidity.  I don’t know if President Obama is the man to reverse this trajectory.  But unless you think that the first eight years of the new millennium were good times, you need to join those of us who hope.
[Jim Castagnera is the Associate Provost/Associate Council at Rider University.  His 17th book, “Al Qaeda Goes to College,” will be published by Greenwood/Praeger next spring.]