Law 798:  Law & Policy of Higher Education

Higher education composes a significant part of the fabric of American institutions. It has an enormous economic impact on society, both in terms of the production of knowledge and in terms of the development of skills for both employment and citizenship that profit American society immensely. Because institutions of higher education have specific missions, which distinguish them from commercial enterprises and even most other philanthropic and non-profit institutions, they are subject to a special and complex set of state and federal regulations. Institutions of higher education are also sites where students act as citizens, expressing their First Amendment right to speech and expression, in a complex setting that also serves academic missions. 

So many of the conflicts that we see in society at large arise in some form on college campuses.  A look at the legal and policy issues that arise in higher education will expose difficult questions related to employment and labor law, free speech and academic freedom, antidiscrimination and anti-harassment laws and policies, questions of sanctioning and due process, processes for internal institutional governance, and much more. This seminar will allow students to take a close look at how some of these legal and policy issues play out in the special context of higher education. 

Institutions of higher education are also impactful. There are about 4,000 public and non-profit degree-granting institutions: doctoral and research universities, four-year colleges, two-year associate degree-granting institutions, and specialty four-year colleges – apart from the less traditional proprietary (for-profit) sector. These institutions enroll over 19.7 million students. In 2019, over $1.5 trillion in student loan debt was outstanding. The Chronicle of Higher Education has recently reported on the demand for lawyers knowledgeable about this area, and the Journal of College and University Law, sponsored by an association of college and university attorneys, is devoted to the special legal problems of these institution. This may well be a venue open to the publication of student work of sufficient quality.

Sequence and Prerequisites: None

Evaluation: This is a research seminar in which students will identify, research, and write about a salient legal problem particular to higher education. The paper will propose and defend a solution for it. The topic is of the student’s choice; a list of possible subjects will be circulated shortly after the middle of the semester. The paper should be between thirty and forty double spaced pages inclusive of footnotes – about the length of a solid law review student note.

The grade in the course will be based primarily on the quality of the paper, its thoroughness – this includes both non-legal as well as legal sources – analytical sophistication, and persuasiveness; and secondarily on the quality of the student’s presentation of and defense of the draft idea for the paper in class.