Sitting in for Edna, who swapped with Matt, your good old professor poses these questions in response to Chapter One:
1.) This overview of law as applied to education is pretty comprehensive, but is there anything that you were surprised by or wouldn't have thought of?
2.) The public/private comparison is pretty important, as we discussed last week. Are there aspects that were not quite clear to you?
3.) We'll talk in class about some of the cases mentioned, specifically, the Dartmouth College case, the Lemon case, and the Locke v Davey case. Pay attention to them, in particular.
Thanks for playing along!
TEM
Subscribe to:
Post Comments (Atom)
I think the biggest surprise (or irony) is that Berea College is responsible for "in loco parentis" yet today is a progessive institution that relies on all students working to perform daily operational tasks at the University. From one extreme of "acting in place of the parent" the institution is now treating students like mature, adults capable of performing critical tasks. Continues to make me wonder...
ReplyDeleteAlso, the importance of contract law at both public and private institutions and where (especially for a public) can they "make" a student waive Constitutional Rights by enforcement of a contract.
This comment has been removed by the author.
ReplyDeleteI got a lot out of reading the relationship between Law and Policy. "Law focuses primarily on the legality of a particular course of action, while policy focuses primarily on the efficacy of a particular course of action." I don't think I have ever thought about the relationship in this manner before.
ReplyDeleteI absolutely love sharing the beauty of mathematics with others right now, but I desire to possibly one day become an administrator at a community college. Therefore it would be nice to know and learn more about the role of an administrator when it comes to policy making. Kaplin and Lee gave some insight into this, but perhaps someone here has some higher education administration experience that could share some about this?
This might piggy-back a little on Jason's question:
ReplyDeleteIt seems that American higher education went from its "special" status to being a breeding ground for litigation in a fairly short amount of time. It's a little overwhelming to consider the extent to which we might be held accountable for our actions, no matter how sound our intentions might be.
When I was recently hired by USF, I attended an orientation where things like sexual harassment and FERPA were lightly covered. I shutter to think that those cursory introductions to the law constitute the entirety of training we receive, as adminstrators, faculty, and/or staff of such a large institution.
Do you think we're sufficiently aware of the parameters and consequences of the law as it relates to our work with students? Do we have enough people, scattered around our very large campus, who can effectively manage the risk? Or do we simply hire a handful of attorneys to look out for the slew of us?
That is an interesting post Jennifer. PHCC has one attorney (College attorney and director of govermental affairs.) The attorney usually speaks to the faculty/staff once a year I believe, giving updates, recomendations on how to handle certain situations, etc. I recall this last year he spoke about institution email, saying "If you wouldn't feel comfortable seeing the email in the newspaper, then you probably shouldn't send it."
ReplyDeleteI have always felt comfortable working with students. But if I stop for a moment and think, I probably am not very aware of the parameters and consequences of the law as it relates to working with students. Unfortunately it is probably not until an "incident" occurs until many become educated on the matter. Which of course may be to late.
Ken,
ReplyDeletePerhaps Berea is still acting as a "good parent"; providing opportunities, through responsibility, for students to become more productive and autonomous adults. It's the parents (except for you and I, of course) who might benefit from their example.
Parents are our (student affairs) friends - while perhaps some of us might want to hide behind FERPA, it is not a releationship that should be feared (especially with great parents like Jennifer and myself) - helicopter? No way - I am a bulldozer parent - I went to the University a year before my twin sons - cleared a path and now it is easy for them to negotiate! (lol)
ReplyDeleteJason - Saint Leo University has a Coordinator for Risk Management that handles the "insurance" aspects of risk - while our full-time University counsel handles all legal aspects of the University. My previous institution had a law office "on retainer" and we "paid" for all consultations - I enjoy having an attorney on staff who not only "looks out for the University" but who allows student affairs to do their job and make some decisions that may potentially result in litigation, follow our stated policy (contract law!) -- He is a student-focused individual who "gets it." -- He eats in the dining hall with students, staff and faculty all the time and has an open door policy - often he will even consult on decisions in question and default to "our" opinion if we make a sound argument. In more than 30 years in higher education, I believe that he is one of the greatest allies to student affairs.
I think the information about the differences in private and public institutions was particularly interesting to me. I have family members that work for private schools and its amazing the differences in the things they worry about and "get away with" that I would never get away with in the public setting I am in right now. I think the question of how far the rights of private institutions can go and how far it can go against the constitution. I still think, personally, that free speech rights should be upheld even in private institutions...but I have to admit, I have seen examples lately even in public colleges where the right to free speech was, in my opinion, breached due to "politically correct" standards in the media...will be interesting to see how far it goes.
ReplyDeleteKen & Jennifer - thanks for the discussion about in loco parentis and Berea College. It is interesting, Ken, about the case law and the behavior of the institution in present day. I like the fact that Jennifer eluded to the idea that perhaps the idea of "parent" is changing. To me, it seems there are cases and/or situations that occur today which are starting to indicate the "in loco parentis" idea is coming back. If we start admitting students in larger numbers who are under the age of majority, this may also impact the role of the institution.
ReplyDeleteOne thing I noticed in the chapter overview is how not all of the cases used to describe a concept within higher education were cases that deal with higher education. Two cases in particular that were used to discuss the public vs. private dichotomy related to constitutional rights are the Robins v PruneYard Shopping Center (students who were distributing political material in the shopping center sought to be able to continue and the court sided with them) and Boy Scouts of America v. Dale (where the membership of a homosexual scoutmaster was revoked and the court found that this was part of the private organizations' right to "freedom of expressive association" because it "affects in a significant way the organization's ability to advocate public or private viewpoints." Even though these two cases were not within the higher education setting, they greatly helped in understanding the caveats that could impact these decisions.
2) I am still perplexed about the public vs. private dichotomy and how the state action doctrine is determined. Specifically, I think the "nexus" approach is the most confusing. I am also curious how a "fourth" approach can come to pass and if this is something only the Supreme Court can do but lower courts cannot?
2. I have some additional questions regarding the public and private dichotomy. It seems to me that private institutions are not completely independent with regards to consitutional issues and many grey areas exist with legal policy. What are everyone's thoughts regarding the role of state action and federal funding associated with it's influence on private institutions?
ReplyDeleteBenet,
ReplyDeleteHopefully, we'll get more clarification because it does seem that there are several "grey areas". Your post interests me, though, because I was just reading an article where Georgetown University tried to deny an organization university affiliation because it supported gay rights. Even though GU is private, the courts found that "the state's interest in eradicating sexual orientation discrimination outweighed the burden that compliance with the Human Rights Act would impose on Georgetown's religious exercise".
Although DC and Wisconsin are the only ones who have made this type of decision thus far, it would seem that other states might not be too far behind. It could get interesting...
Bingham, T. (2007). Discrimination in education: Public versus private universities. Journal of Law and Education,
As we hear so often "it depends..." - How about this topic is "as clear as mud"? - Federal money (access to it) is a wonderful motivator for private institutions when it comes to compliance and legal issues. I found the Sec. 1.7 on The Relationship Between Law and Policy very insightful and practical - "...relying to the fullest extent feasible upon the academic expertise of administrators and faculty members, so as to maximize the likelihood that instituional policies, on their face and in their application, will be upheld by the courts if these policies are challenged." Just because a private institution has the ability to "contract" with students, staff and faculty and not abide by some "constitutional" issues does not mean that it is good practice or that they indeed do this... (but there is definately more latitude to do so in a private institution.)
ReplyDeleteI just made the connection between this case (Georgetown) and the Bob Jones University case mentioned in the text...same premise applied. I wonder if/when all of the decisions of private institutions will be outweighed by the government's interest?
ReplyDeleteThe area that I was surprised to learn about was how government offers support religious institutions and not violate the Establishment Clause. It was interesting to read about the level of scrutiny applied by the courts regarding cases that may potentially infringe on the Establishment Clause. I fully understand that the Establishment Clause states that the government cannot establish religion. It was difficult to follow the multiple revisions that took place in the evolution of the three-pronged process to define violation of the Establishment Clause. The multiple decisions and revisions that occurred from 1976-2001 testify to the complexity of the process. It surprised me to realize that there was not a more clear cut line when it came to government funding of higher education. The “greyness” of funding some institutions but not others was not something I had not previously considered.
ReplyDeleteI think Benet's question about the relationship between state action and federal funding and its influence on private institutions to be very interesting. It does seem that the traditional dichotomy between public versus private does tend to blur when the government can pull the financial aid card. However, I am curious as to how/why certain institutions are penalized and others are not. For example, the Philadelphia Bible University explicitly states in their handbook under their student standards of conduct section guidelines which prohibit students from freedoms such as engaging in homosexual relationships and engaging in certain regular forms of recreational entertainment (they must choose carefully, very vague language). Nonetheless it begs the question, if they can prohibit this why can't Georgetown, a much more progressive institution in comparison, not officially recognize a group that simply recognizes gay rights? Is the distinction university recognition alone? The fact that their is something explicitly written in Georgetown's "contract" with students that doesn't guarantee the university the right to discriminate? Has the law just not caught up to other colleges/universities? Or are certain instituions like PBU pulling the figurative wool over Uncle Sams eyes?
ReplyDeleteSpeaking of gray area, I was surprised that the courts would use academic custom to influence rulings in cases involving faculty tenure. These customs don't even have to be written down. They just have to be "understood." I don't see how that can hold much water.
ReplyDeleteNo one's mentioned it yet, but the part of the chapter I was most interested in was about the religious litigation and establishing when/if it is viewed that the government is supporting religion through federal support of private religious schools. The pronged system they developed to evaluate this seemed to work, but to what extent has this been settled today? I'm also fascinated with the notion of religious accommodation. How far does a university or college have to go to accommodate a student's religious beliefs?
ReplyDeleteAt INTO USF's English language program on campus we have had many religious based requests from primarily our Saudi students (they make up the majority of our program). The most recent one...a few women who cover their heads told our administration that they do not want to work in groups in class with women who do not cover their heads. Is this treated the same as a request from a student "I don't like him, or he smokes so I don't want to be in a group with him" where the teacher tells him/her "tough luck" or "work by yourself then". Or is this automatically different, is there more reason to make an accommodation because the nature is religious based? -Michelle-