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Handbook for Student Law for Higher Education Administrators - Revised edition

by James Ottavio Castagnera (Author)
©2014 Textbook VI, 266 Pages
Series: Education Management, Volume 6

Summary

The Handbook for Student Law for Higher Education Administrators is a practical tool, intended for administrators, dealing with students in higher education and focusing principally on four-year institutions. Addressing the ever-developing relationship between higher education and the law, the book provides the academic administrator with the means to knowledgeably and confidently navigate the many legal threats and challenges facing colleges today. Using examples from real cases and scenarios from numerous institutions, the handbook provides sample policies, checklists, and advice that administrators can apply to a wide variety of situations, both preventatively and proactively. This 2014 revised edition of Dr. Castagnera’s popular handbook is a current compendium of practical knowledge and guidance, useful for any administrator dealing with the legal minefield that is higher education in this second decade of the new millennium.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Introduction: The Social and Legal Environment of Student Administration
  • Origins of the American System of Higher Education
  • American Higher Education Today
  • Legal Implications
  • The Legal Environment of Academic Administration
  • Purpose and Structure of This Book
  • Notes
  • Chapter 1. Admissions
  • Advertising and Marketing the Institution
  • Fraudulent Misrepresentation
  • The Formation and Dimensions of the Contractual Relationship
  • Mistakes
  • Reservations of Rights
  • Chapter 2. Financial Aid and Tuition
  • Financial Aid
  • The Student’s Duty to Repay Federal Loans
  • The Trillion-Dollar Elephant in Higher Education’s Living Room
  • Bankruptcy Court Relief for Defaulting Graduates
  • The Institution’s Role in the Loan-Repayment Obligation
  • Tuition
  • The Issue of “Sticker Price” v. Tuition Differentials
  • Establishing Residency
  • Notes
  • Chapter 3. Student Activities
  • Athletic Programs
  • Student Eligibility
  • Discrimination Considerations: Sex
  • Discrimination Considerations: Disabilities
  • Athletic Injuries
  • Other Student Activities
  • Institutional Immunity from Liability for Personal Injuries
  • Liability for Personal Injuries: Standard of Care
  • Liability for Personal Injuries: Fraternities and Sororities
  • Liability for Denial of Free Expression and/or Campus Facilities
  • Notes
  • Chapter 4. Academic Standing, Probation, and Dismissals
  • Due Process Requirements of Academic Probation and Dismissal in the Public Sector
  • Due Process Requirements of Academic Probation and Dismissal in the Private Sector
  • Chapter 5. Academic Integrity, Plagiarism, and Cheating
  • Plagiarism and Cheating
  • Denial of Due Process of Law
  • Illegal Discriminatory Treatment
  • Breach of Contract and/or Fiduciary Duty
  • Common Law Tort Liability
  • University Honor Codes
  • Chapter 6. Alcohol and Drugs
  • Substance Abuse on College Campuses: An Overview
  • Alcohol Abuse and Institutional Liability
  • Drugs on the College Campus
  • Note
  • Chapter 7. Student to Student Harassment, Discrimination, Hazing, and Violence
  • Student-to-Student Harassment and Discrimination
  • Hazing
  • Violence
  • Sexual Assault
  • Campus Killers
  • Case Study No.1: University of Texas (1966)
  • Case Study No. 2: Dawson College (2006)
  • Case Study No. 3: Virginia Technical University (2007)
  • Liability for a Random Shooting
  • Chapter 8. Physical, Mental, and Learning Disabilities
  • Overview
  • Coverage
  • Provisions
  • Qualified Individual with a Disability
  • Definition of Disability
  • Physical Disabilities
  • Service Animals
  • Gallaudet University: A Case Study in Reverse Discrimination?
  • Mental Disabilities
  • Psychological Disabilities
  • Learning Disabilities
  • Depression and Suicidal Tendencies
  • Notes
  • Chapter 9. Privacy Rights and Intellectual Property Issues
  • Students’ Privacy Rights and the Federal Educational Rights and Privacy Act (FERPA)
  • Case Study: Ohio University Security Breach (Wasley, 2006)
  • Intellectual Property
  • Illegal File Sharing and Piracy
  • Steps to Avoid Liability for Illegal File Sharing
  • A New Age of File Sharing and Ethical Dilemmas: The Aaron Swartz Case
  • Notes
  • Chapter 10. International Students
  • A Short Overview of International-Student Visas
  • The International Student’s Right to Work
  • Other International-Student Visa Categories
  • Curricular Practical Training
  • Undocumented Aliens Attending Our Institutions
  • Index
  • Series Index

INTRODUCTION: THE SOCIAL AND LEGAL ENVIRONMENT OF STUDENT ADMINISTRATION

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 ← 1 | 2 → 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.)

American Higher Education Today

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. ← 2 | 3 →

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 ← 3 | 4 → 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 ← 4 | 5 → 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. ← 5 | 6 →

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.”

Biographical notes

James Ottavio Castagnera (Author)

James Ottavio Castagnera, J.D., PhD, has spent more than thirty years practicing, writing about, and teaching law. He is an expert in employment law and policy and is well versed in many areas of higher education law, particularly risk management issues in the industry. He has been a labor lawyer and litigator with a major Philadelphia firm and the general counsel/corporate secretary for what was the largest convenience store chain in New Jersey and for the nation’s number one econometric forecasting organization. He has published nineteen books, as well as some fifty professional/scholarly articles and book chapters. Currently he is legal counsel at New Jersey’s Rider University and managing director of a freelance writing, editing, and consulting firm, K&C Human Resource Enterprises. In 2007 he was an Academic Fellow on Terrorism in Israel under the auspices of the Foundation for Defense of Democracy. His nineteenth book, Counter Terrorism Issues: Case Studies in the Courtroom, was published in 2013.

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Title: Handbook for Student Law for Higher Education Administrators - Revised edition