SYLLABUS
HIGHER EDUCATION: LAW AND POLICY
(2019)
Shiva Falsafi
Instructor: Shiva Falsafi
Class Schedule and Location: Wednesday 10:00-12:00 in Law Room 3393
Office Location: 3478
Office Hours: Wednesdays, 12-1
E-mail: falsafi@law.ucla.edu
Texts:
1. American Higher Education in the Twenty-First Century: Social, Political, and
Economic Challenges. Edited by Philip G. Altbach, Patricia J. Gumport, and Michael N.
Bastedo, Johns Hopkins University Press, 2016.
2. The remaining reading material has been compiled into a reader.
Course Description:
This course introduces students to the legal, institutional, and political processes that shape
education policy in the United States on the federal and state levels and then moves on to
contemplate certain contemporary challenges including those related to affordability.
Throughout the course, we will pay close attention to how different legal frameworks,
including constitutional standards and civil rights legislation, impact the educational
system. We will open our discussion by investigating the manner in which multiple bodies
of law address discrimination on campus on the basis of race, sex, disability, sexual
orientation, and gender identity, before proceeding to review other areas of concern such as
violence and bullying against students, and the First Amendment landscape at colleges and
universities.
The course weaves into the examination of the legal terrain a detailed discussion of both the
obstacles facing institutions and ways in which the limitations of the current debate on
education reform hampers our ability to change the status quo. We will explore the rapid
rise in the cost of education in tandem with the deficiencies of the financial aid laws, before
moving on to examine how the curriculum and programs offered by academic centers fall
short of preparing students for the changing nature of the global economy.
There are no prerequisites for taking this course.
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Requirements:
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Class Presentations: Each student is expected to prepare one short (15-20 minutes)
presentation on one of the major articles or book chapters included in the reading.
You may choose any article that has an "*" next to it for your presentation. The
presentations will be graded pass/fail.
Reaction Posts: Each week, students are required to post one meaningful quote from
the weekly reading material 24 hours (or more) in advance of the class meeting.
Please explain your choice in the post and include a compelling question that arises
from it. The posts will be graded pass/fail. Students presenting during a particular
week will not be required to post anything. If you miss two or more reaction posts,
you will be required to prepare an extra presentation.
Final Paper:
o If you are taking the class to satisfy the Substantial Analytical Writing,
"SAW," requirement, you are required to:
 Write an independent research paper (20-30 pages including a full
bibliography, typed and double-spaced) on a relevant topic of
interest to the student.
 Submit a research paper proposal in class in week 4 consisting of a short
paragraph outlining your thesis and the issues you will be examining in
your paper.
 Submit a first draft of the paper in class in week 8.
o If you are not taking the seminar to satisfy your SAW requirement, you are
required to submit a 10-15 page paper (typed and double-spaced).
o All final Papers are due no later than ____________________.
Class Participation: The syllabus identifies two different collections of reading
material. The first, listed under the week’s subject heading, is required reading and
will form the basis of class discussions. The recommended reading provides
additional material for those who are interested in delving deeper into a particular
topic.
Laptop Policy: A closed laptop rule during class will be enforced.
Evaluation:
Final Research Paper:
Class Presentations:
Reaction Posts:
Class Participation:
50%
15%
20%
15%
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COURSE ORGANIZATION AND READING ASSIGNMENTS
Week One:
Higher Education: A System in Crisis?
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Taylor, Mark C. "End the University as We Know It," The New York Times (April 26,
2009), http://www.nytimes.com/2009/04/27/opinion/27taylor.html?_r=0.
Altbach, Philip G., “Patterns of Higher Education Development.” In American Higher
Education in the Twenty-First Century: Social, Political, and Economic Challenges.
Edited by Philip G. Altbach, Patricia J. Gumport, and Michael N. Bastedo, Johns
Hopkins University Press, 2016, Chapter 7.
Rhode, Deborah L. "Legal Education: Rethinking the Problem, Reimagining the
Reforms," 40 Pepp. L. Rev. 437 (2012-3013).
Week Two:
Survey of Government Institutions and Political Processes that Shape Education Policy.
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Mumper, Michael, Lawrence E. Gladieux, Jacqueline E. King, and Melanie E. Corrigan,
“The Federal Government and Higher Education.” In American Higher Education in
the Twenty-First Century, Chapter 8.
McGuinness, Jr., Aims C., “The States and Higher Education.” In American Higher
Education in the Twenty-First Century, Chapter 9.*
Blanchard, Joy, and Benjamin Baez, “The Legal Environment: The Implementation of
Legal Change on Campus.” In American Higher Education in the Twenty-First Century,
Chapter 10.
Recommended Reading:
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Kaplin, William A., Barbara A. Lee, The Law of Higher Education: A Comprehensive
Guide to Legal Implications of Administrative Decision Making. Jossey-Bass, 2013, pp.
23-62 (Governance, Sources of Law, Public/Private Dichotomy); pp. 1786-93
(Federal Rule Making); and pp. 85-91 (The Relationship between Law and Policy).
Week Three:
Different Actors in Higher Education.
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Deil-Amen, Regina. “The 'Traditional College Student: A Smaller and Smaller
Minority and its Implications for Diversity and Access Institutions,” paper prepared
for the Mapping Broad-Access Higher Education Conference, Stanford University. *
Altbach, Philip G., "Harsh Realities: the Professoriate in the Twenty-First Century."
In American Higher Education in the Twenty-First Century, Chapter 4. *
Recommended Reading:
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Slaughter, Sheila and Gary Rhoads, "State and Markets in Higher Education: Trends
in Academic Capitalism." In American Higher Education in the Twenty-First Century,
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Chapter 17.
Gumport, Patricia J., "Graduate Education and Research: Interdependence and
Strain." In American Higher Education in the Twenty-First Century, Chapter 5.
Eckel, Peter D., and Adrianna Kezar, "The Intersecting Authority of Boards,
Presidents, and Faculty: Toward Shared Leadership." In American Higher Education
in the Twenty-First Century, Chapter 6.
Week Four:
Investigation of Different Legal Frameworks Governing the U.S. Education System: Title VI,
and Affirmative Action; DACA; and the Travel Ban.
Research Paper Proposal Due.
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West-Faulcon, Kimberly. "Reversed Protection: A Discrimination Claim Gone Wild in
Fisher v. Texas," 7 UC Irvine L. Rev. 133 (2017).*
Yuvraj, Joshi. "Bakke to the Future: Affirmative Action after Fisher," 69 Stan. L. Rev.
(2017).
Stripling, Jack "Before Harvard, Asian Americans were Thrust into U. of California’s
Acrimonious Affirmative-Action Debate," The Chronicle of Higher Education
(November
14,
2018),
https://www.chronicle.com/article/BeforeHarvard/245090.
Field, Andy Tsubasa “Colleges Should Enhance Resources for Undocumented
Students, Report Urges. Here’s How Some are Doing That,” The Chronicle of Higher
Education (October 22, 2018), https://www.chronicle.com/article/Colleges-ShouldEnhance/244877.
“Status of Current DACA Litigation,” National Immigration Law Center (November 9,
2018), https://www.nilc.org/issues/daca/status-current-daca-litigation/.
Fischer, Karin "In Upholding Trump’s Travel Ban, The Supreme Court Ratifies
Worldview that Worries Colleges," The Chronicle of Higher Education (June 26,
2018), https://www.chronicle.com/article/In-Upholding-Trump-s-Travel/243765.
Panduranga, Harsha “Trump’s Travel Ban is Still Unconstitutional: And We’ll Keep
Challenging it in Court,” Brennan Center for Justice (October 22, 2018),
https://www.brennancenter.org/blog/trumps-travel-ban-still-unconstitutional.
Recommended Reading:
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Kaplin, The Law of Higher Education, pp.1733-43 (Title VI).
Gerber, Scott, D. "Clarence Thomas, Fisher v. University of Texas, and the Future of
Affirmative Action in Higher Education," 50 U. Rich. L. R. (2016).
Smith, Daryl G. "The Diversity Imperative: Moving to the Next Generation." In
American Higher Education in the Twenty-First Century, Chapter 13.
West-Faulcon, Kimberly. "The River Runs Dry: When Title VI Trumps State AntiAffirmative Action Laws," 157 U. Pa. L. Rev. 1075 (2008-2009).
Marin, Patricia and John T. Yun, "After Proposition 209: Post-Affirmative Action
College Access Policy in California." In The States and Public Higher Education Policy:
Affordability, Access, and Accountability. Edited by Donald E. Heller, Baltimore, MD:
Johns Hopkins University Press, 2011, Chapter 6.
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Week Five:
Legal Frameworks Continued: Gender Discrimination: Title IX.
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Chamberlain, Elaine, Hannah Cornett, and Adam Yohanan. "Athletics & Title IX of the
1972 Education Amendments," 19 Geo. J. Gender & L. 231 (2018).
Mathewson, Alfred Dennis. "Remediating Discrimination Against African American
Female Athletes at the Intersection of Title IX and Title VI," 2 Wake Forest J. L. & Pol'y
295 (2012).*
Thompson, Scott Skinner and Ilona M. Turner. "Title IX's Protections for
Transgender Student Athletes," 28 Wisc. J. L. Gender & Soc'y 271 (2013).*
Zimmerman, Jonathan. "Blame Football, Not Title IX," The Los Angeles Times
(January 9, 2014), http://articles.latimes.com/2014/jan/09/opinion/la-oezimmerman-football-title-ix-ncaa-20140109.
Recommended Reading:
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Kaplin, The Law of Higher Education, pp. 447-450 & 1743-1746 (General); 13411356 (Equitable Treatment of Female and Male Athletics); 888-893 (Admissions
Policy).
Economist
Series
of
Essays
on
Transgender
Identities,
https://www.economist.com/transgender.
Coleman, Doriane Lambelet. "Sex in Sport," 80 Law & Contemp. Probs. 63 (2017).
Week Six:
Legal Frameworks Continued: Violence: Sexual Assault, Sexual Harassment, and Bullying.
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Buzuvis, Erin, E. "Title IX and Procedural Fairness: Why Disciplined-Student
Litigation Does Not Undermine the Role of Title IX in Campus Sexual Assault," 78
Mont. L. Rev. (2017). *
Brown, Sarah and Katherine Mangan “What You Need to Know about the Proposed
Title IX Regulation,” The Chronicle of Higher Education, (November 16, 2018),
https://www.chronicle.com/article/What-You-Need-to-Know-About/245118
Friedersdorf, Conor “The ACLU Declines to Defend Civil Rights,” The Chronicle of
Higher
Education,
(November
19,
2018),
https://www.theatlantic.com/ideas/archive/2018/11/aclu-devos-title-ix/576142/
Roth, Emma, J. & Shayna Medley “Betsy DeVos Wants to Roll Back Civil Rights
Protections for Students Filing Complaints of Sexual Harassment or Assault,” ACLU
(November 16, 2018), https://www.aclu.org/blog/womens-rights/womens-rightseducation/betsy-devos-wants-roll-back-civil-rights-protections.
Proposed Title IX Regulation Changes, Office of Civil Rights, Department of
Education
(November
15,
2018),
https://www2.ed.gov/about/offices/list/ocr/docs/title-ix-nprm.pdf (Use this for
reference only to supplement the other articles. Not part of reader, can find it on the
class webpage).
Recommended Reading:
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Kaplin, The Law of Higher Education, pp. 1024-1030 (Sexual Assault, Protecting
Students Against Violent Crime); 483-492 (Sexual Harassment in the Employment
context); and 868-76 (students’ legal relationship to other students).
Silbaugh, Katharine. "Reactive to Proactive: Title IX's Unrealized Capacity to Prevent
Campus Sexual Assault," 95 B. U. L. Rev. 1049 (2015).
Franks, Mary Anne. "Sexual Harassment 2.0," 71 Md. L. Rev 655 (2011-2012) (Cyber
bullying).
Dieterich, Cynthia A., Nicole DiRado Snyder & Christine Villani. "Bullying Issues
Impacting Students with Disabilities: Highlights of Section 1983, Title IX, Section
504, ADA, and IDEA Cases," 2015 BYU Educ. & L.J. 107 (2015).
Week Seven:
Legal Frameworks Continued: Discrimination on the basis of Sexual Orientation and Gender
Identity.
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Khan, Mudasar, Kelly McLauglin, Peter Mezey & Daniel Robertson. “Challenges
Facing LGBTQ Youth,” 18 Geo. J. Gender & L. 475 (2017).* (Presentation pp. 477510).
Rauch, Jonathan. “Gay Rights, Religious Liberty, and Nondiscrimination: Can a Train
Wreck Be Avoided,” U. Ill. L. Rev. 1195, (2017).*
Cordle, Nathan R. “Title IX at 45: The Evolution and Impact on LGBTQ+ Rights,”
American Bar Association (November 2, 2018).
Strauss, Valerie, “Pioneering Transgender Student at Harvard Reacts to Trump
Proposal to Redefine Gender: ‘You Cannot Erase Us,’” The Washington Post, (October
24, 2018).
Recommended Reading:
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Kaplin, The Law of Higher Education, pp. 468-473, 511-512 (Laws Prohibiting
Discrimination on the Basis of Sexual Orientation); and 473-475, 512-514 (Laws
Prohibiting Transgender Discrimination).
Anderson, Ryan T. “A Brave New World of Transgender Policy,” 41 (1) Harvard
Journal of Law & Public Policy (Winter 2018).
Pizer, Jennifer C. “Religious Freedom and LGBT Rights Continue to Coexist,” 34 GPSolo
16 (2017).
Wilson, Robin Fretwell. “Being Transgender in the Era of Trump: Compassion Should
Pick Up Where Science Leaves Off,” 8 UC Irvine L. Rev. 583 (2018).
Week Eight:
Legal Frameworks Continued: Discrimination on the basis of Disability.
First Draft of Paper Due.
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Rothstein, Laura. "The Americans with Disabilities Act and Higher Education 25
Years Later: An Update on the History and Current Disability Discrimination Issues
for Higher Education," 41 J.C. & U.L. (2015) (Presentation split between two
students: 532-566 & 566-end).*
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Recommended Reading:
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Kaplin, The Law of Higher Education, pp. 497-504 (Disability as a Protected Class);
451-460 (ADA); 585-588 (Disability Discrimination); 894-901 (Admissions); and
1174-1178 (Disciplining Students with Mental Disorder).
Week Nine:
Legal Frameworks: First Amendment: Free Speech and Academic Freedom.
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Chemerinsky, Erwin. “Tobriner Memorial Lecture: Free Speech on Campus,” 69
Hastings L. J. 1339 (2018).*
Amar, Vikram, David and Alan E. Brownstein. "A Close-up, Modern Look at First
Amendment Academic Freedom Rights of Public College Students and Faculty," 101
Minn. L. Rev. (2017).* (Presentation limited to pages 1943-1970).
Recommended Reading:
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Kaplin, The Law of Higher Education, pp.1196-1222 (Student Protests and Freedom
of Speech); 1223-1236 (Hate Speech); and 1435-1441 (Campus Exclusion of
Speakers and Events).
Papandrea, Mary-Rose. "The Free Speech Rights of University Students," 101 Minn.
L. Rev. (2017).
Scaduto, Dana, E. and Debra P. Fourlas. "Campus Free Speech Policies and Managing
Unpopular Speakers," 88 Pa. B. Ass'n Q. (2017).
Tsesis, Alexander. "Multifactoral Free Speech," 110 Nw. U. L. Rev., (2016).
LeRoy Michael, H. "How Courts View Academic Freedom," 42 J.C. & U.L. (2016).
O'Neil, Robert M., “Academic Freedom: Past, Present, and Future.” In American
Higher Education in the Twenty-First Century, Chapter 2.
Week Ten:
Cost and Financial Aid.
 Johnstone, D. Bruce, “Financing Higher Education: Reconciling Institutional
Financial Viability and Student Affordability.” In American Higher Education in the
Twenty-First Century, Chapter 11.*
 College Board. “Trends in College Pricing 2018,” Trends in Higher Education Series,
https://trends.collegeboard.org/sites/default/files/2018-trends-in-collegepricing.pdf.
 Loonin, Deanne and Julie Margetta Morgan. “Federal Student Aid: Can We Solve a
Problem We Do Not Understand,” Utah L. Rev. 897 (2018).* (Presentation together
with The Atlantic Article).
 Harris, Adam. “America Wakes Up From Its Dream of Free College,” The Atlantic,
(September 11, 2018).
Recommended Reading:
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Goldrick-Rab, Sara, Paying the Price: College Costs, Financial Aid, and the Betrayal of
the American Dream. The University of Chicago Press, 2016.
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Simmons, Omari S. "Class Dismissed: Rethinking Socio-Economic Status and Higher
Education Attainment," 46 Ariz. St. L. J. 231 (2014).
Glater, Jonathan, D. "Student Debt and Higher Education Risk," 103 Cal. L. Rev.
(2015).
Baum, Sandy. "Student Debt: Where is the Crisis," 7 UC Irvine L. Rev. (2017).
Week Eleven:
Cost Continued: Community Colleges, For Profit Universities, college preparedness
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Bahr, Peter Riley and Jillian Leigh Gross, "Community Colleges." In American Higher
Education in the Twenty-First Century, Chapter 16.*
Kraiem, Daniela. "The Cost of Opportunity: Student Debt and Social Mobility," 48
Suffolk U. L. Rev. (2015).*
Logue, Alexandra W., Mari Watanabe-Rose, and Daniel Douglas. “Reforming
Remediation,”
Education
Next
(Spring
2017),
https://www.educationnext.org/reforming-remediation-college-studentsmainstreamed-success-cuny/
McGuire, Patricia. “Want More College Students to Graduate? Fix the High Schools,”
The
Chronicle
of
Higher
Education,
(April
12,
2018),
https://www.chronicle.com/article/Want-More-College-Students-to/243101.
The Editorial Board. “The DeVos School for the Promotion of Student Debt,” The New
York
Times,
(August
26,
2018),
https://www.nytimes.com/2018/08/26/opinion/editorials/betsy-devos-studentdebt.html.
Recommended Reading:

St. John, Edward P., Nathan Daun-Barnett, Karen M. Moronski-Chapman, Public
Policy and Higher Education: Reframing Strategies for Preparation, Access, and
College Success. New York, NY: Routledge, 2013, Chapter 4 (College Preparation) and
Chapter 6 (College Success and Degree Completion).
Week Twelve:
Admissions.
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Rosner, Jay, "The SAT: Quantifying the Unfairness Behind the Bubbles." In SAT Wars:
The Case for Test-Optional College Admissions. Edited by Joseph A. Soares, Teachers
College Press, Columbia University, 2012, Chapter 6.*
Turning the Tide: Inspiring Concern for Others and the Common Good Through
College Admissions, Created by Making Caring Common, A Project of the Harvard
Graduate
School
of
Education,
https://static1.squarespace.com/static/5b7c56e255b02c683659fe43/t/5bae62a6b
208fc9b61a81ca9/1538155181693/report_turningthetide.pdf*
Hoover, Eric. “From 37,000 Feet, 5 Questions About College Admission,” The
Chronicle
of
Higher
Education,
(January
21,
2018),
https://www.chronicle.com/article/From-37000-Feet-5-Questions/242300.
England, Jason. “Admissions Confidential,” The Chronicle of Higher Education,
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(December 03, 2017), https://www.chronicle.com/article/Confessions-of-anAdmissions/241919.
Strauss, Valerie. “U.S. News Changed the way it Ranks Colleges. It’s Still Ridiculous,”
The
Washington
Post,
(September
12,
2018),
https://www.washingtonpost.com/education/2018/09/12/us-news-changed-wayit-ranks-colleges-its-still-ridiculous/?utm_term=.2f46eef8d09d.
Jaschik, Scott, “Another Edge for the Wealthy,” Inside Higher Ed, (July 27, 2017),
https://www.insidehighered.com/news/2017/07/27/study-says-commonadmissions-practice-measuring-demonstrated-interest-favors.
Recommended Reading:
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Schudde, Lauren T. and Sara Goldrick-Rab, “Extending Opportunity, Perpetuating
Privilege: Institutional Stratification amid Educational Expansion.” In American
Higher Education in the Twenty-First Century, Chapter 12.
Douglass, John Aubrey, "SAT Wars at the University of California." In SAT Wars,
Chapter 3.
Bielby, Rob, Julie Renee Posselt, Ozan Jaquette, and Michael N. Bastedo. “Why Are
Women Underrepresented in Elite Colleges and Universities? A Non-Linear
Decomposition Analysis,” Research in Higher Education (2014).
Week Thirteen:
Future of Learning: Curriculum, Technology, and Other Tools.
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Bastedo, Michael N., “Curriculum in Higher Education: The Organizational Dynamics
of Academic Reform.” In American Higher Education in the Twenty-First Century,
Chapter 3.*
Neumann, Anna and Corbin M. Campbell, "Homing in on Learning and Teaching:
Current Approaches and Future Directions for Higher Education Policy." In
American Higher Education in the Twenty-First Century, Chapter 14.
Perna, Laura W. and Roman Ruiz, "Technology: The Solution to Higher Education's
Pressing Problems?" In American Higher Education in the Twenty-First Century,
Chapter 15.
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