restricted access Introduction to Higher Education Law
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The Review of Higher Education Summer 1984, Volume 7, No. 4 Pages 293-294. Copyright © 1984 Association for the Study of Higher Education All Rights Reserved INTRODUCTION TO HIGHER EDUCATION LAW Michael A. Olivas, guest editor The study of higher education law, like that of its parent fields, higher education and law, is developing rapidly. In response to an administrative need to understand complex litigation and its effect upon the governance of institutions, knowledge of higher education law has become essential to anyone in a responsible position in higher education. In addition to the immediate, practical, and applied uses of law in college settings, there has emerged more systematic research on higher education law. Beginning with M.M. Chambers’ seminal 1941 work, The Colleges and the Courts, scholars have mined the rich veins of litigation to contribute to an understanding of legal processes in postsecondary institutions. However, this research, frequently published in law reviews and legal periodicals, rarely enriched the practice of administration. Attor­ neys and law professors rarely become college presidents, although most central adminstrators rely heavily upon counsel when making major policy decisions. Moreover, scholars in the field of higher education rarely read law, and there is little interaction in formal scholarly associations between legal researchers and higher education scholars. A veritable cottage industry has emerged to bridge the gap between litigation and adminstration and between scholar and practi­ tioner, although, as Sorenson and Shaffer note in their review essays, the gap remains great. Also great is the lack of consensus on what constitutes higher education law. As Dressel and Mayhew noted a decade ago, higher education itselfas a field of study “is an active, confused field, lacking Michael A. Olivas is an associate professor in thè Colleges o fEducation and Law, and thè Director o fthè Institutefor Higher Education Law and Governance at thè University o f Houston. 293 294 The Review of Higher Education many of the attributes of a discipline, yet demanding more disciplined effort” (1974, p.31). Surely the same must be said for the field’s subspecialty, higher education law. More vexing, perhaps, is what constitutes the “law” of higher education law. While no definition is proffered here, the organization of the articles suggests more than a narrow definition of law-as-litigation. Indeed, an expansive view is taken, revealing testing organizations, politicians, state agencies, the federal government, and institutions all to be actors in the legalization of the academy. Notably absent is any ideological attempt to comment upon whether the increased litigation is “good” or “bad” for the higher education enterprise. This omission is deliberate, not because the authors have no principled views in the matter, but because the question is simply beyond the scope of this project. In truth, however, the issue of whether the litigation chronicled here is too much or too little is crucial to the legitimacy of higher education law as a developing field of study. If legal scholarship in higher education were to take on a “body-count” cast, counting victories and losses, serving only to legitimate unprincipled administrative deci­ sions, or advancing only theories of risk management, much would be lost in law’s possibility for ensuring equitable treatment in a meritoc­ racy. This scenario is unlikely to occur, as the increased resort to litigation has not always advantaged college adminstrators, who fre­ quently lose in court. As Brooks has ably demonstrated in his article, courts’ views of students have changed, and more than one critic (e.g., Riesman, 1980) has decried the pendulum’s swing to students. When a more thorough review of higher education law is written, it will surely address the crucial issue of the proper role of law in the academy. Ten years ago, in Higher Education as a Field of Study, Dressel and Mayhew noted, “An almost new component of the field of higher education covers legal provisions, legal interpretations and the implications for higher education of precedent and legislated and administrative law” (1974, p.88). This volume marks a major advance over the situation of a decade ago, while ASHE’s core of higher education legal specialists promises continued attention to this impor­ tant aspect of higher education as a...


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