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The Academic Administrator and the Law: What Every Dean and Department Chair Needs To Know. ERIC Digest.

The deans and chairs who direct academic programs at universities, colleges, and community colleges frequently must address issues that raise legal questions. It is difficult to name a program or a service in higher education that does not intersect with the law in some way. The academic administrator must develop the skills needed to recognize the legal issues that invariably shape the policies and decisions made in a school or department. And deans and chairs must understand the resources available to assist them in resolving these issues, particularly when to call for legal advice.

WHAT LEGAL ISSUES MIGHT ARISE FOR DEANS AND CHAIRS?

DOES THE LEGAL COMMUNITY DEFER TO ACADEMIC DECISION MAKING?

WHAT ARE THE ROLES OF INSTITUTIONAL COUNSEL AND ACADEMIC DEANS AND CHAIRS?

Also of interest to academic administrators are the actual process of litigation--from complaint and answer, to discovery and trial (or settlement), to decision and remedy--and the issues of authority and delegation that determine whether individuals or institutions will be held liable.

WHAT ISSUES DO ACADEMIC ADMINISTRATORS FACE DAILY?

Academic administrators must keep in mind several very practical concerns in hiring and promoting faculty and staff: avoiding inappropriate questions during the interview, respecting individual privacy rights, and following immigration laws. Deans and chairs must also understand and respect faculty members' right of academic freedom while still evaluating faculty performance, taking action when it is insufficient, and investigating and perhaps punishing misconduct by employees, such as sexual harassment.

Courts increasingly decide cases involving students using implied contract theories, having moved from the traditional doctrine of in loco parentis. Institutions are no longer necessarily assumed to have a parental-type relationship with students. Students are viewed as consumers with reasonable expectations of institutions for programs and services. In addition, although the traditional deference to academic decision making persists, courts are ever more willing to intervene in campus disciplinary actions involving both academic concerns and disciplinary matters. Typically, the key question in disciplinary matters is due process: How much notice and how much process is a student entitled to in a given situation?

Similarly, although courts continue to afford broad discretion to academic administrators in the area of admissions, institutions may be held in violation of the anti-discrimination laws and Equal Protection Clause of the U.S. Constitution when they act in a discriminatory manner, including in the emerging area of disability. Immigration law is also a common issue in admissions. Deans and chairs must also be aware of legislation that governs the confidentiality of students' records, as well as constitutional provisions that protect the right of students to organize and express themselves. Finally, negligence-based institutional liability involving students is a critical concern for academic administrators.

Several state and federal regulations have a substantial effect on administrative decisions for schools and departments, particularly those addressing intellectual property, open meetings, family and medical leave, funded research, and taxation. Similarly, schools and departments are typically heavily involved in accreditation coordinated by private associations that serve a quasi-regulatory function.

"The Academic Administrator and the Law" includes an extensive list of references that provide more detailed analysis of particular topics. In no way is the report intended to be a substitute for sound legal advice, nor can it answer all legal questions a dean or chair might have. It does provide the background needed to better understand the complex relationships between the law and the administration of academic services and programs in postsecondary education.

REFERENCES

Kaplin, William A., and Barbara A. Lee. 1995. "The Law of Higher Education." San Francisco: Jossey-Bass.

Leap, Terry L. 1995. "Tenure, Discrimination, and the Courts." 2d ed. Ithaca, N.Y.: Cornell Univ. Press.

Marchese, Theodore J., and Jane F. Lawrence. 1988. "The Search Committee Handbook: A Guide to Recruiting Administrators." Washington, D.C.: American Association for Higher Education. ED 346 760. 62 pp. MF-01; PC-03.

O'Neil, Robert M. 1993. "The Lawyer and the Client in the Campus Setting: Who Is the Client, What Does the Client Expect, and How May the Attorney Respond?" Journal of College and University Law 19(4): 333-42.

This ERIC digest is based on a full-length report in the ASHE-ERIC Higher Education Report series Volume 25, Number 5, The Academic Administrator and the Law: What Every Dean and Department Chair Should Know by J. Douglas Toma and Richard L. Palm.