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Title: Handbook for Student Law for Higher Education Administrators, Third Edition

Handbook for Student Law for Higher Education Administrators, Third Edition

by James Ottavio Castagnera (Author)
©2017 Textbook X, 298 Pages
Education
Series: Education Management, Volume 10

Summary

The Handbook for Student Law for Higher Education Administrators, Third Edition is a practical tool, intended for administrators dealing with students in higher education, focusing principally on four-year institutions. Addressing the ever-evolving relationship between higher education and the law, the book will provide the academic administrator with the means to knowledgably and confidently navigate the many legal threats and challenges facing colleges today. Focused on the "hot" issues in higher education today, and using examples from real cases and scenarios from many institutions, the handbook provides sample policies, checklists, and advice that administrators can apply to a wide variety of situations, both preventatively and proactively. The Handbook for Student Law for Higher Education Administrators, Third Edition is a compendium of practical knowledge and guidance, useful to all administrators dealing with the legal minefield that is higher education.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author(s)/editor(s)
  • About the book
  • Praise for Handbook for Student Law for Higher Education Administrators
  • This eBook can be cited
  • Contents
  • Introduction: What This Book Is and Is Not
  • Origins of the American System of Higher Education
  • American Higher Education Today
  • The Innovator’s Dilemma
  • A Perfect Storm?
  • The Middle Class and the Implosion of Home Equity
  • “When Everybody’s Somebody. …”
  • Liberalized Credentialing
  • References
  • Chapter 1: Admissions
  • Advertising and Marketing the Institution
  • Fraudulent Misrepresentation
  • Advice
  • The Formation and Dimensions of the Contractual Relationship
  • Analysis
  • Outcome
  • Advice
  • Mistakes
  • Analysis
  • Reservations of Rights
  • Holding
  • Advice
  • References
  • Chapter 2: Financial Aid and the Student Loan Crisis
  • The Issue of “Sticker Price” v. Tuition Differentials
  • What Happens When the Business Model Relies on Student Loans
  • The Demise of Corinthian Colleges
  • The 2016 Department of Education “Loan Relief” Regulations
  • The Current Case Law on Students’ Duty to Repay Their Loans
  • Facts
  • Analysis
  • Outcome
  • Advice
  • The Institution’s Current Role in the Loan-Repayment Obligation
  • Advice
  • References
  • Chapter 3: Student Activities
  • Athletic Programs: The Revolt of the Student-Athlete
  • The Student Athlete and the Fair Labor Standards Act
  • The Student Athlete and the National Labor Relations Act
  • Facts
  • Football Players Are Subject to Special Rules
  • Time Commitment to the Sport
  • Impact of Bowl Games
  • Reasoning and Holding
  • What Came Next?
  • The Student-Athlete and the Sherman Anti-Trust Act
  • Facts
  • The District Court’s Decision
  • The Ninth Circuit Affirmed in Part
  • The Decision’s Reception
  • Summing Up This Section
  • An Introduction to Title IX
  • Achieving Gender Equity by Subtraction
  • The Right of Private Action and Available Remedies
  • Rights of the Injured or Disabled Student Athlete
  • The Student-Athlete with a Disability
  • The Injured Student-Athlete
  • Facts
  • Analysis
  • Analysis
  • Advice
  • The Concussed Student-Athlete
  • Background
  • Background of the Case
  • Settlement Negotiations and Preliminary Approval
  • The Settlement
  • Monetary Award Fund
  • Baseline Assessment Program
  • Education Fund
  • Is Hollywood in Collusion?
  • Hollywood v. Real Life
  • The NCAA Concussion Case
  • No End in Sight
  • Injuries from Other Student Activities
  • Institutional Immunity from Liability for Personal Injuries
  • Appellate Panel Reverses
  • Holding
  • Advice
  • Liability for Personal Injuries: Standard of Care
  • Analysis
  • A Word of Advice
  • Fraternities and Sororities: Liability for Your Greeks
  • Analysis
  • A Word of Advice
  • Liability for Denial of Free Expression and/or Campus Facilities
  • Facts
  • Analysis
  • Facts
  • Analysis
  • Holding
  • References
  • Chapter 4: Academic Standing, Probation, and Dismissal
  • Due Process Requirements of Academic Probation and Dismissal in the Public Sector
  • Facts
  • Analysis
  • Advice
  • Due Process Requirements of Academic Probation and Dismissal in the Private Sector
  • Advice
  • Facts
  • Analysis
  • Chapter 5: Academic Integrity, Plagiarism, and Cheating
  • Plagiarism
  • Plagiarism Made Easy
  • Cheating
  • Who Cheats and Why Do They Cheat?
  • How Do They Cheat?
  • Cheat Sheets
  • Partner-Cheating Methods
  • Some Solutions
  • Online Cheating
  • Plagiarism
  • A Model Academic-Integrity Procedure
  • Denial of Due Process of Law
  • Facts
  • Analysis
  • Facts
  • Analysis
  • Advice
  • Illegal Discriminatory Treatment
  • Facts
  • Analysis
  • Facts
  • Advice
  • Breach of Contract and/or Fiduciary Duty
  • Facts
  • Analysis
  • Advice
  • Common Law Tort Liability
  • Facts
  • Analysis
  • A Case That Offers Everything
  • Conclusions
  • References
  • Chapter 6: Alcohol and Drugs
  • Substance Abuse on College Campuses: An Overview
  • Alcohol Abuse and Institutional Liability
  • Lampert v. State University of New York at Albany, 116 A.D. 3d 1292, New York Supreme Court, Appellate Division, April 17, 2014
  • Bogenberger v. Pi Kappa Alpha Corporation, 2016 IL App. (1st) 150128, Appellate Court of Illinois, June 13, 2016
  • Court’s Decision
  • Criminal Liability?
  • Advice
  • Boston College Alcohol and Education Program
  • Bowling Green State University, BGSU Peer-Based Alcohol Misperception Program
  • Grand Valley State University, Alcohol Education Research and Training Laboratories
  • Encouraging Reporting
  • Drugs on the College Campus
  • The Marijuana Revolution
  • Meanwhile in the Courts
  • Advice
  • Conclusion
  • References
  • Chapter 7: Student to Student Harassment, Discrimination, Hazing, and Violence
  • Student-to-Student Harassment
  • Hazing
  • Violence
  • Sexual Assault
  • Investigating and Adjudicating a Sexual Assault Case
  • Should Colleges Be Required to Adjudicate Sexual Assaults?
  • The Campus Crusade against Sexual Assault in the Context of the Ongoing Erosion of the Rights of the Accused
  • Guns and Violence
  • The Mother of All Campus Shootings: Virginia Technical University (2007)
  • Liability for a Random Shooting
  • University Safety Measures
  • The Criminal Case
  • Disposition of the Civil Suit
  • Advice
  • Conclusion
  • References
  • Chapter 8: Physical, Mental, and Learning Disabilities
  • Overview
  • ADA and Rehabilitation Act Coverage
  • Major Provisions
  • Qualified Individual with a Disability
  • Definition of Disability
  • Americans with Disabilities Act Amendments (2008)
  • The “Hot” Issues of 2017
  • Service Animals v. Comfort Animals
  • Legal Liability
  • Intent to Harm Others v. Intent to Harm Oneself
  • Deafness and Other Hearing Disabilities
  • The “Closed Caption” Initiatives
  • Does a Student’s Disability Enhance Our Responsibility?
  • Facts
  • The Court’s Decision
  • But as to the ADA …
  • Conclusion
  • Chapter 9: Privacy Rights and Intellectual Property Issues
  • Students’ Privacy Rights and the Federal Educational Rights and Privacy Act (FERPA)
  • Security Considerations
  • 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
  • References
  • 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
  • International Student Safety Concerns
  • What a Good “Safety” Orientation Might Include
  • International Students’ Responsibilities
  • Important Documents They All Should Have
  • References
  • Index
  • Series index

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INTRODUCTION

What This Book Is and Is Not

First, what this book is not. This little volume is not intended to be a comprehensive compendium of student law. Other larger and longer tomes are available, along with a plethora of other resources in print and online, if that’s what you’re seeking.

Rather, this third edition of my Handbook, far more explicitly than was implied by the preceding two iterations, is aimed at identifying and discussing in a pragmatic manner, the “hot issues” of 2017 and immediately beyond that face higher education administrators. Each chapter seeks to identify and deal with the challenges that have emerged since the second edition appeared three years ago.

I open here with context. In a very few words, my thesis is that American higher education, having evolved through four earlier eras … Waves … is now experiencing the Fifth Wave. The Fifth Wave most likely is the most revolutionary and challenging of all the eras of our industry.

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 ← 1 | 2 → 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 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.) ← 2 | 3 →

American Higher Education Today

Now, fast forward to the second decade of the new millennium and meet the voice of higher education’s doom: Professor Clayton Christensen of the Harvard Business School. In March 2013, Dr. Christensen garnered headlines with his prediction that by 2028 (i.e., in another decade and a half) 50 percent of all American colleges and universities will likely be facing bankruptcy (Castagnera 2014, p. 7).

The professor’s prognostication was prompted by the then-imminent closure of Saint Paul’s College, a historically black school founded in 1888 in Lawrenceville (VA). In the three years since that closure, others have followed in its wake. During the first half of 2015 alone:

• March 2015: Two small, Southern liberal arts colleges—Virginia’s all-female Sweetbriar College and Tennessee Temple University, a Christian liberal arts institution—announced their intent to close the gates (Bidwell 2015).

• April 2015: The for-profit Corinthian Colleges, once one of America’s largest chains, abruptly closed its remaining 28 campuses, leaving some 16,000 current students stranded (Zillman 2015).

• May 2015: For-profit Education Management Corporation announced the closure of 15 out of 52 Art Institute locations (Zillman 2015).

• May 2015: Career Education Corporation indicated its intent to terminate its 14 Sanford Brown College campuses (Zillman 2015).

While somewhat startling, this list might not seem cause for concern, considering that institutions of higher education number somewhere between 3,000 and 5,000, depending upon how inclusive one wants the list to be. Nonetheless, these failures have led some leading prognosticators to join Clay Christensen in predicting an accelerating trend. Notably, in September 2015 Moody’s Investor Service released a report that highlighted “a persistent inability among small colleges to increase revenues,” with the result that some 15 more such schools will close by next year (Woodhouse 2015).

Yet again, one might retort that these closures represent a miniscule percentage of the 2300 private college that dot the American landscape (Woodhouse 2015). The multi-million dollar question thus became: Is Dr. Christensen correct? Or, put another way: Are the current closures the crest of a coming deluge of institutional demises, or merely an extension of a steady state historical tendency of a few colleges and universities to fail almost ← 3 | 4 → every year, since time out of mind? (See Index of Colleges and Universities That Have Closed, Merged, or Changed Names 2014) An attempted answer to this question must begin with a summation of Dr. Christensen’s “Disruption” theory.

The Innovator’s Dilemma

In 1997, The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail (Christensen 1997), was a disruption in its own right. It quickly made Dr. Christensen one of the most influential business thinkers on the planet. The Economist anointed his book one of the half-dozen best of the twentieth century’s second half. Thinkers twice appointed him to a top ranking (Goldstein 2015, p. B6)

In his introduction, Christensen says,

This book is about the failure of companies to stay atop their industries when they confront certain types of market and technological change. … Such seemingly unaccountable failures happen in industries that move fast and in those that move slow; in those built on electronics technology and those built on chemical and mechanical technology; in manufacturing and service industries. (Christensen 2015, 1, p. 7)

His opening example is Sears Roebuck. He cites Fortune for the proposition that in 1964 “everybody in its organization simply did the right thing, easily and naturally. And their cumulative effect was to create a powerhouse of a company.” But, continues Christensen in 1997,

[N]o one speaks about Sears that way today. Somehow, it completely missed the advent of discount retailing and home centers. In the midst of today’s catalogue retailing boom, Sears has been driven from that business. Indeed, the very viability of its retailing operations has been questioned. (Christensen 1997, p. 7)

The Innovator’s Dilemma is replete with additional examples of once-prosperous companies falling from grace in the face of cheap competitors. Some 165 pages later, he offers a summation of his thesis in seven succinct points:

(1) “[T]he pace of progress that markets demand or can absorb may be different from the progress offered by technology.” That, he claims, means that products apparently not useful to today’s customers, i.e., disruptive technologies, may be just the ticket tomorrow. ← 4 | 5 →

(2) Managing innovation means giving enough resources to the right technologies and letting others starve.

(3) Then you need to match the market with the new technology.

(4) Most companies’ capabilities are a lot more specialized that their managers realize.

(5) The information may not even exist to make large and decisive investments in new, disruptive technologies.

(6) Disruptive technologies favor “first movers.”

(7) Bottom line, despite their technology, brands, manufacturing prowess, managerial experience, distribution clout, and cash on hand, successfully, established firms have a hard time flexing to innovations that don’t immediately make money. “Because disruptive technologies rarely make sense during the years when investing in them is most important, conventional managerial wisdom at established firms constitutes an entry and mobility barrier that entrepreneurs and investors can bank on.” (Christensen 2015, pp. 173–174)

Application of this theory to higher education was but a short step for Christensen. The application of his thesis to higher education runs roughly like this: Higher education has never before faced a core technology capable of disrupting the status quo.

[A]n Ivy League wannabe could follow only one route: intensive investment in facilities, faculty and the other indicia of a first-tier university. By contract, Christensen contends, today online learning is that missing core technology. Almost any one now can capture, stream and distribute Ivy League-level content over the Internet. And this will blow the walls off traditional higher education. Put another way, why should a student borrow money, pay exorbitant tuition, and sit in a traditional classroom listening to a mediocre professor, when she can learn the same material from the top expert in the world in a MOOC (Massive Online Open-enrollment Course), for which her college will give her course credit? (Castagnera 2014, p. 7)

Christensen spun out this higher education adaptation to book length in The Innovative University (Christensen and Eyring 2011).

In the past 20 years, Professor Christensen has become a cottage industry with two consulting companies guided by a son and a daughter, none (mostly co-authored) books, and a reputed lecture fee north of $40,000 (Goldstein). At the same time, his disruption theory has come under attack, most notably by an in-depth examination of the 77 case studies in his seminal work. This paper reportedly finds that only 10 percent of the companies studied meet all ← 5 | 6 → the criteria laid down by Christensen (Christensen and Eyring 2011). Meanwhile, the Harvard guru of disruption continues to expand his theory into such diverse arenas as religion and politics. And he holds fast to his prediction that, as online learning becomes more sophisticated and effective, it will be the disruptive technology that will put large swaths of colleges and universities to the torch (Christensen and Eyring 2011).

Only time will tell if Clay Christensen is correct. But we need not wait 15 years for the answer. Indeed, if he’s right, that will be too late.

A Perfect Storm?

We need not wait because online learning is not the only disruptor of higher education crashing against the shores of our college campuses. Other forces also are at work, combining to create a potential perfect storm to disrupt the lethargic, the complacent and the slothful among us. Those forces include:

(1) The decline of the middle class and in particular the erosion of home equity;

(2) Increasing competition among colleges and universities; and

(3) The liberalization of credentialing, by which I mean the nearly universal ability of students to cobble together a college degree from a mix of life experiences, community college credits, AP examinations, as well as Christensen’s vaunted online programs.

As in the book The Perfect Storm, these three “weather systems” are converging, such that Dr. Christensen’s prediction may come true even though his theory of the cause is at best only a partial explanation.

The Middle Class and the Implosion of Home Equity

On December 14, 2014, The Washington Post explained “Why America’s Middle Class Is Lost.” Explained the article’s author,

It used to be that when the U.S. economy grew, workers up and down the economic ladder saw their incomes increase, too. But over the past 25 years, the economy has grown 83 percent, after adjusting for inflation—and the typical family’s income hasn’t budged. ← 6 | 7 →

Continues the piece,

In that time, corporate profits doubled as a share of the economy. Workers today produce nearly twice as many goods and service per hour on the job as they did in 1989, but as a group, they get less of the nation’s economic pie. (Tankersley 2014)

Details

Pages
X, 298
Publication Year
2017
ISBN (PDF)
9781433142314
ISBN (ePUB)
9781433142321
ISBN (MOBI)
9781433142338
ISBN (Softcover)
9781433142307
DOI
10.3726/b11049
Language
English
Publication date
2017 (October)
Published
New York, Bern, Berlin, Bruxelles, Frankfurt am Main, Oxford, Wien, 2017. X, 298 pp.
Product Safety
Peter Lang Group AG

Biographical notes

James Ottavio Castagnera (Author)

James Ottavio Castagnera, J.D., Ph.D., has spent more than 30 years in higher education. He has published 20 books, as well as some 50 professional/scholarly articles and book chapters. Dr. Castagnera’s teaching has taken him to the University of Texas-Austin, the Wharton School of the University of Pennsylvania, the Widener University School of Law, and at present Drexel University’s law school; he also does about 30 webinars per year on higher education topics. Currently, he is Associate Provost and Legal Counsel for Academic Affairs at New Jersey’s Rider University and the managing director of his own consulting firm. In these dual capacities he regularly conducts internal investigations in sexual harassment and assault cases; advises on and develops student policies and adjudicates student disciplinary cases; develops new academic programs; manages international-student legal issues; supervises services for students with disabilities; and handles a wide variety of other regulatory and legal matters.

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Title: Handbook for Student Law for Higher Education Administrators, Third Edition