The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making (review)

At over 1,700 pages, the fourth edition of The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making provides a complete and authoritative treatment of the topic and continues to be the definitive text for both administrators and legal counsel at universities, colleges, and community colleges.

William Kaplin and Barbara Lee begin with foundational material, reviewing the expanding reach of the law into higher education through their discussion of the governance of higher education, both internal and external. They underscore the distinctions between public and private institutions, exploring the particular legal context at religious institutions. The discussion here is interesting and relevant beyond what readers normally consider as legal issues, providing them with a neatly organized account of the general structure of American higher education. For practicing administrators, the authors include a useful chapter covering the types of possible legal liability, how litigation unfolds from initial complaint to resolution, alternative dispute resolution, the models for the provision of legal services at institutions, and the basics of risk management at higher education institutions. They also provide an accessible outline of the sources of higher education law—external ones such as constitutions and statutes and internal ones like institutional rules and regulations and academic custom and usage.

Building upon these foundational concepts, Kaplin and Lee move to employment law, first discussing issues of authority as passed from trustees to various institutional officers and affiliated organizations. Such questions of authority determine the possible liability of either individuals or institutions, whether grounded in tort, contract, or constitutional law. Employment law is of particular interest in higher education—to practitioners, attorneys, and scholars alike—and the authors explore the definition and boundaries of the employment relationship, asking increasingly fundamental questions such as who is an employee as opposed to an independent contractor. They also survey practical topics: employment contracts, civil service rules, and collective bargaining; various employee protections such as occupational safety and health and unemployment compensation; and the proper evaluation of employee performance. The discussion of employment law concludes with a thorough and timely examination of nondiscrimination and affirmative action—an area of continued volatility and utmost importance. Kaplin and Lee describe the sources of the law here, such as Title VII and the Americans with Disabilities Act, and the various characteristics such as race, gender, and age that define protected classes under constitutional principles.

Given the particular contexts and distinctive issues associated with faculty employment, the authors focus on the area separately, covering topics including nondiscrimination in faculty employment decisions; standards and criteria for faculty personnel decisions; and closure, merger, and reduction in force involving faculty. Kaplin and Lee also closely examine academic freedom and freedom of expression for faculty in the contexts of teaching, research, institutional affairs, and private life. Such discussions are inherently grounded in academic values, of course, and the authors are particularly successful in articulating these as they explore various topics across the book.

There is an equally comprehensive and compelling section in The Law of Higher Education on students, beginning with a discussion of the relationship between students and institutions: the legal status of students; their admission and the provision of financial aid; and issues related to housing, computing, campus security, and various support services. The authors also consider the rights and responsibilities of individual students and of student organizations and their members, discussing due process issues as well as more substantive concerns as student protests, free expression, and speech codes.

A particular strength of Kaplin and Lee is the significant attention they devote to relations between higher education institutions and local, state, and federal governments and nongovernmental actors such as accrediting agencies. Here, especially, they rightly highlight the various and important intersections between law and policy. The authors underscore federal influence on institutions, including through civil rights enforcement, immigration...