After taking the course AHE 554, Legal Issues in Higher Education, the enormity of the ways in which legal issues touch our work in higher education is clear. Through various sources, the law reaches its hands down into the daily experiences of our students, as well as into the policies and procedures that we put into place. A clear understanding of the ways in which the law effects us is imperative for higher education leaders and professionals in the field.
The three main sources of law that impact our work are legal issues derived from the U.S. Constitution, federal statutes that are tied to federal funding, and tort law, which includes civil wrongs committed against an individual or group. In order to organize the vast amounts of legal information, I will separate my discussion into these three areas, although there are other areas, including contracts and intellectual property, that I will not discuss in this overview.
Beginning with legal issues that stem from the Constitution, there are rights guaranteed by the Constitution to the individual that a public institution could infringe upon. These include freedom of expression, freedom of religion, freedom of association, the right to keep and bear arms, the right to due process of law, and equal protection under the law. Because a public institution is a “state actor”, when a public college or university infringes upon these rights and freedoms, the institution may be taken to court because of a Constitutional violation (Kaplin & Lee, 2007). Constitutional law does not apply in the same way at a private institution. Some common cases that may emerge from Constitutional Law include issues of free speech and university speech codes, issues of due process when a student is expelled from an institution without the university following a set procedure that allows him to defend himself, and issues of discrimination when a student or student group believes that they are being treated differently because of some factor that is out of their control, including their identities. Speech codes often come under scrutiny with Constitutional Law, because restricting the speech and expression of students at a public institution is viewed as the government limiting what individuals can say, which is strictly forbidden in the United States. In the coming years, the right to keep and bare arms on campus may come into play in the courts because of the current discussion of gun rights in the news currently.
The second source of law that highly impacts higher education are the many federal statutes that are associated with federal funding. These include Section 504 of the Rehabilitation Act, Title VI and Title IX, The Jeanne Clery Act, and the Family Educational Rights and Privacy Act (FERPA). All of these laws operate under the threat of pulling federal funding; if an institution, or a department or employee within an institution, is found to have violated one of these laws, the federal government and the Department of Education can pull federal funding as punishment, which includes federal grants and student loans. Almost no university can survive financially without access to federal funds, so the threat is significant. Some issues that may arise based on these laws include not providing accommodations to a student with disabilities, based on Section 504; discrimination based on race, color, national origin, or sex, associated with Title VI and Title IX; hiding crime statistics from students and employees, as per the Clery Act; and releasing confidential information about a student, based on FERPA (Kaplin & Lee, 2007). The regulations associated with these federal statutes influence the policies and procedures on campus in a huge way, with institutions putting policies into place that will hopefully prevent any violations from happening. Often states have more restrictive versions of these federal laws, so it is important to learn about my state’s statutes when I enter a new position in a different state.
The third source of law I will discuss is called tort law, which is a civil wrong that would be tried in civil, not criminal, court. Tort laws include issues of negligence. In order to prevent lawsuits and to make our campuses safe and secure for our students, we should be diligent about prevention, including training our staff well, maintaining our physical facilities, putting policies in place that safeguard students, creating rules and regulations that are clearly defined, and informing the campus community about those policies, rules, and regulations. These steps to prevention are our first priority, because we want safe campuses. However, sometimes our prevention strategies fail, and the institution may need to mitigate circumstances when there is an injury to a student or employee. There are some things we can do beforehand that will lessen the likelihood that the institution will be found liable for an injury with the obligation to pay monetary damages to the injured party (Kaplin & Lee, 2007). When participating in some event that might carry injury of some kind, a field research experience or a outdoor adventure sport class, students should sign waivers acknowledging that they are “assuming the risk” inherent in the activity. Any activity that carries risk should be optional to students, and they should be well informed of the risks involved in that particular activity. Once an injury happens, a student breaks her leg on a ski trip or a student is in a car accident in a university vehicle, the institution should do all it can to help the student, including offering prompt care. If a negligence case goes to court, the institution, along with its lawyers, can work to prove that they perhaps did not have a duty to that individual, did not breach their duty, that the institution’s negligence was not the primary cause of the injury, that the injured party assumed the risk, or that the injured party is comparatively negligent. However, the most important factors with tort law are the prevention strategies we employ.
There are a multitude of other legal issues that could impact higher education, including all of the legal issues that impact society and students outside of the institution. For my legal memo, I investigated one of these outside legal issues, where students were impacted by a local ordinance that was effecting their housing in the community. To remain current on these types of issues, I will need to keep my ears open, reading the national and local news to learn about new laws and regulations that may effect my work and my students. I will also want to know the procedures and policies on my campus associated with legal issues, and perhaps involve myself in committee work to improve them. Finally, whenever I am unsure about a policy, now that I have basic legal knowledge, I will know areas of concern that I might bring to my supervisors or to in house legal counsel. However, the field is huge, and my doubts arise whenever I think that I will catch every policy, procedure, and law that needs revisiting. Therefore, it is important to work collaboratively across campus with those who may have more knowledge in various areas, so that we can create the safest campus possible together.