Section 1.1. How Far the Law Reaches and How Loudly It Speaks
Law's presence on the campus and its impact on the daily affairs of postsecondary institutions have grown continuously at least since the 1960s. From then until the present, the volume and complexity of litigation in our society generally, and involving higher education specifically, have increased dramatically. The growth of government regulations, especially at the federal level, has also been dramatic and pervasive. The potential has increased for jury trials and large monetary damage awards, for court injunctions affecting institutions' internal affairs, for government agency compliance investigations, and even for criminal prosecutions against administrative officers, faculty members, and students. Many factors have contributed over the years to the development of this legalistic and litigious environment. Students' and parents' expectations have increased, spurred in part by increases in tuition and fees and in part by society's consumer orientation and marketing efforts by college and universities to attract students. Higher education institutions have also served as epicenters of social and political division occurring in the larger society on a range of issues. The greater availability of data that measures and compares institutions, and greater political savvy among students and faculty, has led to more sophisticated demands on institutions. Advocacy groups have used litigation against institutions as the means to assert faculty and student claimsāand applicant claims as well, in suits concerning affirmative action in admissions and employment. Satellite campuses (including international locations for some institutions), off-campus programs, and distance learning have extended the boundaries of the campus, bringing into the fold of higher education a diverse array of persons whose interests may conflict with the interests of those groups whose concerns have traditionally dominated on campus. And an increasingly adversarial mindset, a decrease in civility, and a diminishing level of trust in societal institutions have made it more acceptable to assert legal claims at the drop of a hat.
Moreover, society has become more sensitized to civil rights; and Congress, state legislatures, and courts have focused more on their recognition and enforcement. Technological advances have raised a multitude of new legal issues regarding intellectual property, personal privacy, and freedom of speech. Study abroad programs, internships, and innovative field trips and off-campus assignments have created new exposures to legal risk. Federal, state, and local statutes and administrative regulations have raised difficult compliance challenges in many critical areas of campus life, such as confidentiality of records, student safety, incidents involving sexual misconduct, campus security, equal opportunity, computer network communications, and the status of international students.
Financial pressures have led to competition for resources, which in turn has increased the likelihood of disputes about funding, salaries, and budgets. Financial pressures have also stimulated the growth of entrepreneurial activities as alternative sources of income. Faculty members' entrepreneurial activities have strained their traditional relationships with their institutions, while institutions' own entrepreneurial activities have drawn them increasingly into the commercial marketplace and exposed them to additional possibilities for legal disputes. In the face of all these pressures, institutions have become better equipped to defend themselves vigorously when sued and are more willing to initiate lawsuits when the institution's mission, reputation, or financial resources have been threatened.
Thus, whether one is responding to campus disputes, planning to avoid future disputes, or crafting an institution's policies and priorities, law is an indispensable consideration. Legal issues arising on campuses across the United States continue to be aired not only within academia but also in external forums. For example, students, faculty members, administrators and staff members, and their institutions have increasingly litigated their claims in the courts, and their disputes have more frequently involved outside parties (government agencies, corporations, and individuals). Institutions have responded by expanding their legal staffs and outside counsel relationships and by increasing the number of administrators in legally sensitive positions. As this trend has continued, more questions of educational policy have become legal questions as well (see Section 1.7). Law and litigation have extended into every corner of campus activity.1
There are many striking examples of cutting-edge (and sometimes just wrong-headed) cases that have attracted considerable attention in higher education circles or have had a substantial impact on higher education. Students have sued their institutions for damages after being accused of plagiarism or cheating or after being penalized for improper use of a campus computer network; controversies over campus free speech have resulted in legal challenges involving student speech rights; objecting students have sued over mandatory student fee allocations; victims of harassment have sued their institutions and professors alleged to be harassers; students found in violation of institutional sexual misconduct policies have alleged violations of their due process or contractual rights; student athletes have sought injunctions ordering their institutions or athletic conferences to grant or reinstate eligibility for intercollegiate sports; student athletes or former athletes have also sued to be compensated for their athletic participation or the use of their image in marketing and merchandising; students with disabilities have filed suits against their institutions or state rehabilitation agencies, seeking accommodations to support their education; students who have been victims of violence have sued their institutions for alleged failures of campus security; hazing victims have sued fraternities, fraternity members, and institutions; parents have sued administrators and institutions after students have committed suicide; and former students involved in bankruptcy proceedings have sought judicial discharge of student loan debts owed to institutions. Disappointed students have challenged their grades in court, such as the student who filed suit claiming that being required to type led to his receiving a lower grade because he typed more slowly than other students, or the student who fell asleep during an exam and claimed that she was unfairly penalized on the basis of a disability. A student who received an āAā grade in an online class claimed in a lawsuit that a professor's removal of a comment thread from a discussion board for being non-germane to class discussion harmed her chances for future employment at the institution. Students and others supporting animal rights have used lawsuits (and civil disobedience as well) to pressure research laboratories to reduce or eliminate the use of animals. And another student, injured in a Jell-O wrestling event at a college residence hall party that he himself had organized, attempted to pin liability on his university.
Faculty members have been similarly active. Professors have sought legal redress after their institutions changed the professors' laboratory or office space, their teaching assignments, or the size of their classes or after research data or curricular materials were discarded when a faculty member's office was relocated. A group of faculty challenged their institution's decision to terminate several women's studies courses, alleging sex discrimination and violation of free speech. Female coaches have sued over salaries and support for women's teams. Across the country, suits brought by faculty members who have been denied tenureāonce one of the most closely guarded and sacrosanct of all institutional judgmentsāhave become commonplace. Increasing reliance by institutions on non-tenure-track faculty has resulted in contingent faculty seeking to advance their economic and professional interests, including through litigation and administrative actions involving their collective bargaining rights under federal or state law.
Outside parties also have been increasingly involved in postsecondary education litigation. Athletic conferences have been named as defendants in student athlete cases. University academic and athletic foundations have been the subject of lawsuits, including by donors or their families dissatisfied with the use of gifts. Universities have sued sporting goods companies for trademark infringement because they allegedly appropriated university insignia and emblems for use on their products. Broadcasting companies and athletic conferences have been in litigation over rights to control television broadcasts of intercollegiate athletic contests, and athletic conferences have been in disputes concerning teams' leaving one conference to join another. Media organizations have brought suits and other complaints under laws requiring open meetings and public records. Advocacy organizations may fund or support litigation by students or faculty against institutions; the Foundation for Individual Rights in Education (FIRE) and the Alliance Defense Fund are just two examples of such advocacy groups. Separate entities created by or affiliated with institutions have been involved in litigation with the institutions. Drug companies have sued and been sued in disputes over human subjects research and patent rights to discoveries. And increasingly, other commercial and industrial entities of various types have engaged in litigation with institutions regarding purchases, sales, and research ventures. Community groups, environmental organizations, taxpayers, and other outsiders have also gotten into the act, suing institutions for a wide variety of reasons, from curriculum to land use. Recipients of university services have also resorted to the courts. For example, clients of a university's Center for Reproductive Health sued the university when the center gave fertilized embryos to unrelated couples without the consent of the parents of the embryos; another institution was sued for alleged mishandling of the cremated remains of a cadaver donated to the university's research program.
Other societal developments have led to new types of lawsuits and new issues for legal planning. And, of course, myriad government agencies at federal, state, and local levels have frequently been involved in civil suits as well as criminal prosecutions concerning higher education. Drug abuse problems have spawned legal issues, especially those concerning mandatory drug testing of employees or student athletes and compliance with ādrug-free campusā laws. A community college sought unsuccessfully to engage in mandatory, suspicionless drug testing of all its students before the policy was struck down by a federal appeals court. Federal government regulation of internet communications has led to new questions about liability for the spread of computer viruses, copyright infringement, transmission of sexually explicit materials, and defamation by cyberspeech. The rise of Massive Open Online Courses (MOOCs) and similar variations have sparked questions over student privacy and the use of Big Data in higher education. Outbreaks of racial, anti-Semitic, anti-Arab, homophobic, and political and ideological tensions on campuses have led to speech codes, academic bills of rights, and the eruption of a range of issues concerning student and faculty academic freedom. Initiatives to strengthen women's teams, prompted by a...
