Higher Education Law: 690-001
M 4:00-5:50
Course Syllabus
Mary E. Kennard, Vice President and General Counsel
American University (202-885-3285)
mekesq@american.edu
Scope: This course examines the laws applicable to higher education institutions in the United
States. The course explores important state and federal court decisions and examines trends in
the law. The course is designed to acquaint law students with an overview of legal liability in
the college and university setting and explores decision making in the higher education
environment. Areas examined include:
1. Governance, structure, and history of higher education law
2. Faculty, administrator, and student rights
3. Higher education financing, land use, and taxation
4. Research, contracts, and intellectual property
5. Athletics, student activities and services
Student Expectations: Students are asked to review CPM book materials, federal statutes, and
related reference materials and answer the questions and problems in the CPM. The final
examination is the submission of a substantive legal memorandum.
The course grade is based on the following:
1. class participation
25%
2. weekly problems
25%
3. final memorandum
50%
Textbook: The Law of Higher Education, Student Edition, Kaplin and Lee, Jossey- Bass,
Cases, Problems, and Materials (CPM) Supplement will be distributed electronically
Additional Reading – as assigned
Office of General Counsel Website: http://www.american.edu/counsel
PART I
A. CHAPTER I: OVERVIEW OF HIGHER EDUCATION LAW
CLASS ONE
1. Introduction and Overview of Higher Education Law
Overview of higher education administration
Governance of higher education
Sources of higher education law
How to write for the course
C. CHAPTER III: THE COLLEGE AND TRUSTEES AND OFFICERS
CLASS TWO
SEC. 3.2.2. Institutional Tort Liability.
Bradshaw v. Rawlings, 612 F.2d 135 (3d Cir. 1979)
Nero v. Kansas State University, 861 P.2d 768 (Kan. 1993)
Beckman v. Dunn, 419 A.2d 583 (Pa. 1980)
Nova Southeastern University, Inc. v. Gross, 758 So. 2d 86 (Fla. 2000)
Problem 1: will be reviewed in class
Problem 2
SEC. 1.5.2. The State Action Doctrine.
Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir. 1984)
SEC. 1.6.4 Religion and the Public/Private Dichotomy.
Chaudhuri v. Tennessee State University et al, 130 F.3d 232 (6th Cir. 1997)
D. CHAPTER IV: THE COLLEGE AND ITS EMPLOYEES
CLASS THREE
Guest Speaker –Stephen Semler– Labor Relations on Campus
SEC. 2.4.3. Personal Liability for Violations of Federal Constitutional Rights.
Burnham v. Ianni, University of Minnesota, 119 F.3d 668 (8th Cir. 1997)
Endress v. Brookdale Community College, 144 N.J. Super. 109; 364 A.2d 1080 (App.
Div. 1976)
SECS. 2.3., 2.4., 2.5. Institutional Liability for the Acts of Others, Personal Liability of Trustees,
Administrators, and Staff, and Institutional Management of Liability Risk.
Problem 3
E. CHAPTER V: SPECIAL ISSUES IN FACULTY EMPLOYMENT
SEC. 3.2.2. Organization, Recognition, and Certification.
Lehnert v. Ferris Faculty Association, 500 U.S. 507; 111 S. Ct. 1950 (1991)
SEC. 3.2.3. Bargaining Unit Eligibility of Full-Time Faculty.
NLRB v. Yeshiva University, 444 U.S. 672, 100 S.Ct. 856
SEC. 3.2.5. Coexistence of Collective Bargaining and Traditional Academic Practices.
CLASS FOUR
Non-discrimination and the Anatomy of an EEOC Case
Problem 4
SEC. 3.3.2.1. Title VII of the Civil Rights Act of 1964.
Kunda v. Muhlenberg College, 621 F.2d 532 (3d Cir. 1980)
SEC. 3.3. Nondiscrimination in Employment.
Problem 5
SEC. 3.4. Affirmative Action in Employment.
Taxman v. Board of Education of the Township of Piscataway, 91 F.3d 1547 (3d Cir.
1996) (en banc), cert. granted, 117 S. Ct. 2506, cert. dismissed, 118 S. Ct. 595
CLASS FIVE
Faculty Employment and Termination
SECS. 3.5., 3.6., 3.7. Standards and Criteria for Faculty Personnel Decisions; Procedures for
Faculty Personnel Decisions; and Faculty Academic Freedom.
SEC. 3.5. Standards and Criteria for Faculty Personnel Decisions.
McConnell v. Howard University, 818 F.2d 58 (D.C. Cir. 1987)
SEC. 3.6.2. The Public Faculty Member’s Right to Constitutional Due Process.
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)
Perry v. Sindermann, 408 U.S. 593 (1972)
SEC. 3.8.1. Contractual Considerations.
Krotkoff v. Goucher College, 585 F.2d 675 (4th Cir. 1978)
SEC. 3.8. Staff Reduction Due to Financial Exigency and Program Discontinuance.
Problem 7
CLASS SIX
F. CHAPTER VI: FACULTY ACADEMIC FREEDOM AND FREEDOM OF EXPRESSION
Guest Speaker – Bethany Bridgham –Tax Exempt Organizations
CPM Reading: Pages 213, 259-304
SECS. 3.7.1. - 3.7.6. General Concepts and Principles; Academic Freedom in the Classroom, in
Research and Publication, in Institutional Affairs, and in Private Life.
SEC. 3.7.2. Academic Freedom in the Classroom.
Martin v. Parrish, 805 F.2d 583 (1986)
SEC. 3.7.2. Academic Freedom in the Classroom.
Parate v. Isibor, 868 F.2d 821 (1989)
Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995)
SEC. 3.7.7. Protection of Confidential Academic Information: “Academic Freedom Privilege.”
University of Pennsylvania v. EEOC, 493 U.S. 182; 110 S. Ct. 577 (1990)
Problem 6
CLASS SEVEN
G. CHAPTER VII: THE STUDENT/INSTITUTION RELATIONSHIP
SEC. 4.2.5. Affirmative Action Programs.
Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (en banc)
SEC. 4.3.4. Minority Scholarships and Match pools.
Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994)
SEC. 4.1.3. The Contractual Rights of Students.
Problem 8
CLASS EIGHT
CPM Reading: Pages 315, 386, 496-511, 553
SEC. 4.7.1. Awarding of Grades and Degrees.
Regents of the University of Michigan v. Ewing, 474 U.S. 214; 106 S. Ct. 507 (1985)
Susan M. v. New York Law School, 76 N.Y.2d 241; 556 N.E.2d 1104 (1990)
SEC. 4.7.2 Degree Revocation.
Crook v. Baker, 813 F.2d 88 (6th Cir. 1987)
SECS. 4.5.2., 4.6.1., 4.8.2.; see also SECS. 4.12.1. & 5.7. Codes of Student Conduct, Public
Institutions, and Public Institutions: Disciplinary Sanctions; Institutional Recognition and
Regulation of Fraternal Organizations and Community Activities of Faculty Members and
Students.
Problem 9
SEC. 4.8.4. Private Institutions.
Napolitano v. Trustees of Princeton University, 86 N.J. Super. 548; 453 A.2d 263 (App.
Div. 1982)
SECS. 4.7. & 4.8. Grades, Credits, and Degrees and Procedures for Suspension, Dismissal and
Other Sanctions.
Problem 10
SEC. 4.16. Student Files and Records.
Problem 14
CLASS NINE
H. CHAPTER VIII: RIGHTS AND RESPONSIBILITIES OF INDIVIDUAL STUDENTS
SEC. 4.9. Student Protest and Demonstrations.
Shamloo v. Mississippi State Board of Trustees, 620 F.2d 516 (5th Cir. 1980)
SEC. 4.10. The Special Problem of Hate Speech.
Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th
Cir. 1993)
SEC. 4.11. Student Organizations.
Widmar v. Vincent, 454 U.S. 263 (1981)
Rosenberger v. Rector and Visitors of the University of Virginia, 115 S. Ct. 2510
(1995)
Board of Regents of the University of Wisconsin System v. Southworth, 120 S. Ct. 1346
(2000)
Problem 11
SECS. 4.13.2. & 4.13.3. Permissible Scope of Regulation and Obscenity.
Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973)
SEC. 4.13.4. Libel.
Mazart v. State, 441 N.Y.S.2d 600 (Ct. C1. 1981)
SECS. 4.6., 4.8., 4.13. Disciplinary Rules and Regulations, Procedures for Suspension,
Dismissal, and Other Sanctions, and Student Press.
Problem 12
SEC. 4.14. Student Housing.
Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971)
CLASS TEN
I. CHAPTER IX: RIGHTS AND RESPONSIBILITIES OF STUDENT ORGANIZATIONS
AND THEIR MEMBERS
K. CHAPTER XI: THE COLLEGE AND EXTERNAL PRIVATE ENTITIES
Guest Speaker – Justin Perillo – Athletics and the NCAA
SEC. 4.15. Athletics.
Mercer v. Duke University; Fred Goldsmith, 190 F.3d 643 (4th Cir. 1999)
SEC. 4.15.3.; see also SECS. 7.5.2. & 7.5.7. Sex Discrimination, Title VI, and Scope and
Coverage of Problems.
SEC. 8.4 Athletic Associations and Conferences.
National Collegiate Athletic Association v. R.M. Smith., 525 U.S. 459 (1999)
California State University v. NCAA, 47 Cal. App. 3d 533; 121 Cal. Rptr. 85 (1975)
Problem 13
CLASS ELEVEN
Guest Speaker – Harry Carlton - Litigation
SEC. 4.17. Campus Security.
Nero v. Kansas State University, 861 P.2d 768 (Kan. 1993)
SECS. 4.14.1. & 4.17.2. Housing Regulations and Protection Against Violent Crime on
Campus.
Problem 15
J. CHAPTER X: THE COLLEGE AND GOVERNMENT
SEC. 5.6.3. Trespass Statutes and Ordinances.
State v. Schmid, 84 N.J. 535, 423 A.2d 615 (1980)
SEC. 5.6.4. Soliciting and Canvassing.
Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 109 S. Ct.
3028 (1989)
CLASS TWELVE
SEC. 6.3.
State Chartering and Licensure of Private Postsecondary Institutions.
Nova University v. Educational Inst. Licensure Commn., 483 A.2d 1172 (1984)
SECS. 6.2. & 6.4. State Provision of Public Postsecondary Education and State Regulation of
Out-of-State Institutions.
Problem 16
Postsecondary Programs.
Red & Black Publishing Co., Inc. v. Board of Regents, 262 Ga. 848; 427 S.E.2d 257
(1993)
CLASS THIRTEEN
Guest Speaker - Joel Zuckerman – Disability Access – and Solo Practice
SEC. 7.2.6. Employment Discrimination Laws.
EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980)
SEC. 4.2.4.3. Disability.
Southeastern Community College v. Davis, 442 U.S. 397 (1979)
SECS. 7.2.16. & 7.5.4. Americans with Disabilities Act and Section 504.
Problem 18
SEC. 7.4.5. Protecting Institutional Interests in Disputes with Funding Agencies.
Board of Trustees of the Leland Stanford Junior University v. Sullivan, 773 F. Supp. 472
(1991)
CLASS FOURTEEN
SEC. 7.2.10. Copyright Laws.
Problem 17
SEC. 8.3. The College and the Accrediting Agencies.
Marjorie Webster Junior College, Inc. v. Middle States Assn. of C. & S. S., Inc., 302 F.
Supp. 459 (1969)
SEC. 9.3. The College as Seller/Competitor.
Jansen v. Atiyeh, 87 Ore. App. 617; 743 P.2d 765 (1987)
Immigration and Foreign faculty staff and students
Environmental Clean-up
Wrap up and Review of the Final Exam Procedures and Expectations
Reading Week:
PART III
CLASS FIFTEEN
Final Exams Submitted for Grading
LARGE-SCALE PROBLEM-SOLVING EXERCISES
Instructions: Complete two (2) large scale problems. Each should be approximately ten
(10) typed pages, double spaced, with @300 words per page. Use a legal memorandum
style format. Please submit your final exam problems to me by email by
6:00 pm on December 10th.
Please be sure to call or email me ASAP, if you are having problems in this class.
You are also welcome to meet with me in my office.