Internal Law Vs External Law

Internal Law Vs External Law 1. From the perspective of a college or university, is there a difference between internal law and external law? What are the kinds of sources of law of each kind? Discuss. In examining whether there is a difference between internal and external law in relation to colleges and universities one must take note of the system of governance as it relates to institutions of higher education. Internal laws within higher educational institutions stem from internal governance structures or entities established within the institution that manages the internal day to day workings. Examples of the internal governing bodies within institutions generally include the administration, faculty, professional staff and students which establish the rules and policies that institutions initiate in the process of governing itself. External governance or law or law comes from federal, state or local agencies. “Higher education institutions are subject to a broad range of federal and state laws” (In Fossey & in Eckes, 2015, p.15). This is due to colleges and universities dealing with everything from property and contract law, administrative regulations, state and federal constitutional rights, and criminal law. The sources of these codified laws are constitutions, statutes, case law, administrative regulations and procedural issues. Constitutions or “where the buck stops” according to Hutchins and Quigley, are authorities texts which define principles of government and are often broad and interpreted by either politicians or judges. Statutes are laws that are implemented by state and federal legislatures that judges interpret and apply, Judges typically examine the legislative history and debates which surround the enactment of a particular statute to determine what the legislature intended when the statute was made into law. Case law is the judicial interpretation of the law and decided by judges. This is where “precedents” or legal principle from previous cases originate. Judges apply the principles from the previous cases to issues currently before them to help decide the matter. Administrative regulations pertain to the laws that govern administrative agencies. Procedural rules provide the guidelines for filing lawsuit or tort claims, initiating criminal filings, and deciding cases based on procedural restrictions. 2. Peter Lake offers his organized perspective on higher education law. What eras is he talking about and what is his organizing criterion in separating each era from the other? What does each era refer to? Peter Lake in his organized perspective on higher education law presented the reader four different eras demonstrating the evolution of law as it pertains to our institutions of higher learning. Lake identifies the period prior to World War II as the era of “Legal Insularity” During this era institutions were granted great latitude in self-governance. The courts of the time rarely considered issues as they related to colleges. Lake pointed to twelve specific legal protections that institutions were afforded during this era. Some of these protections were that “Higher education was not subject to any meaningful, broad-based state or federal regulation” (Lake, 2011, p. 50). “No viable causes of action existed for educational malpractice, negligent admission, or negligent retention. A college was typically free to fail in its core mission and to admit and retain students with legal impunity” (Lake, 2011, p. 50). Colleges were also allowed to discriminate based on age, race, and disability during this time. The Era of Legal Insularity came to a close when courts began intervening in higher education to protect the basic rights of both student and faculty. “ From the early 1960s on, the law steadily chipped away at the notion of higher education as a priviledge, Systematically the Supreme Court held that college students have first amendment rights of association, press and free speech and free exercise of religion” (Lake, 2011, p.52). The Civil Rights era was defined by sweeping legislation passed by Congress such as stripping away the rights of institutions to discriminate, the passing of the Family Education Rights and Privacy Act in 1974. Prior to the 1960’s the landmark decision in Brown V The Board of Education first desegregated K-12 schools however the issue of desregation eventually moved to higher education institutions. “The Civil Rights era brought about the legalistic culture of higher education”. (Lake, 2011, p. 54) The Bystander era was characterized by the development of private contract law. The question opposed during this period were the safety rights of students along with issues related to the core missions of the institution.The higher courts left these matters to the state courts who decided that it was no the college’s responsibility to protect students who engaged in high risk behavior. The courts made the following assertions that college students were adults, alchol use was uncontrollable, college is where students learned about alcohol, and that colleges are not the insurers of public safety were assertions born. This mindset was born of the famous Beach vs Bradshaw case. The question posed in this era consisted of what was the requirement or “duty” of the institutions as it pertains to things such as alcohol usage and incidents tied to the use or abuse of it. “American courts were simply applying the drinker-is-responsible rule to American co!leges, refusing to impose responsibility risk onto colleges that society did not also shoulder” (Lake, p.61). The Facilitator Era ushered in the application of the priciples of business law into higher education. “The period from the 1960’s to 1980’s saw a meteoric growth in the application of negligence law to businesses generally. The private law itself was changing and higher education would not be immune to these changes” (Lake, 2011, p. 63). This era was characterized by tort reform in regard to entity responsibility in the areas of product liability. Variations in in safety laws form state to state emerged and due to the expansion of tort reform, it began to matter tremendously where aand in which state a student attended an institution. A major shift in contract law and its application in regard to institutions created the outline for for promise based responsibility for higher education. In the eyes of the court, the student relationship with higher education was a contractual one in which the courts viewed as in a relationship with the parent, not the studnents. Source: Lake, P. (2011). A Brief Student-Centered History of Higher Education Law. In The Handbook of Student Affairs Administration: (Sponsored by NASPA, Student Affairs Administrators in Higher Education) (1st ed., pp. 47-64). New York, NY: John Wiley & Sons. 3. Review articles posted in the Chronicle of Higher Education or on Inside Higher Ed for the period of August 2017 - January 2018. Consider stories in which institutions of higher education are or can be held liable. Choose two stories (please reference the articles in your submission), discuss developments in each story in more detail, and discuss what kind of liability you are referring to. The firt article that I will expound on involves a young lady in Illinois who is suing Jolliet Community College for what she feels is a violation of her first amendment rights. Ivette Salazar felt that her right to free speech was violated when police officers appearantly detained her passing out anti-capitalism literature on the campus of the college. The article reports that Salazar distributed the fliers in response to conservative students dispensing of anti-socialims literature prior to her incident. The specifics of the case is that Salazaar was detained by campus police and her fliers were confiscated at the police station after she was told by police that she needed to obtain the college's permission prior to any distribution of literature was to be permitted. She was also told by police that the political climate was not conducive to the distribution of flyers with that type of messaging on them. With the backing of the Foundation for Individual Rights in Education (FIRE), a watchdog group for civil liberties in academia. Salazarr is challenging Jolliett’s rule of confining her free expression to one space on campus and the student must obtain the school’s administration’s consent prior to any type of dispensation of literature. “I should be able to express my political beliefs on campus without being detained,” Salazar said in her statement. “JCC didn’t just threaten my freedom of speech, but the freedom of speech of every student on that campus. If we can’t have political discussions on a college campus, then where can we have them” (Bauer-Wolf, 2018). Salazaar is suing her university and various officials, alleging the ordeal violated multiple amendment rights, including free speech.Thus far there has not been a resolution Source: Bauer-Wolf, J. (2018, January 12). Student Sues Community College Over Free Speech Rights. Retrieved from https://www.insidehighered.com/quicktakes/2018/01/12/student-sues-c ommunity-college-over-free-speech-rights Article #2 The second article involves Sociology Professor Timothy Mcgettican of Colorado State University. The specifics of this case were that Professor Mcgettican utilized his work email to protest proposed faculty cuts by the university. The issue here was what was referenced in the email sent by Mcgettican, referring to the “Children of Ludlow” a reference in regard to a massacre of striking coalminers (Roll, 2017). The entirty of the email is as follows: “The hit men massacred those people. Coldly and methodically, the hit men turned their guns on women and children. The hit men riddled the little tent village in Ludlow with bullets, and then they set that village alight,” McGettigan wrote at the time. “That was a century ago. But what, if anything, has changed in southern Colorado?” (Roll 2017). College officials involved invoked past incidents to justify swift action against the professor "Considering the lessons we’ve all learned from Columbine, Virginia Tech and more recently Arapahoe High School, I can only say that the security of our students, faculty, and staff are our top priority," (Roll, 2017). The charge in this situation was that McGettigan was promoting violence, prompting a shutdown of his access to his email account. The action of school officials prompted McGettigan to file a lawsuit alleging defamation as well as First Amendment violations. “When the university shut down my ability to communicate, to respond to these falsehoods [about the reasons for the proposed cuts] the administrators were putting forward, then the only other means that I had at my disposal to fight back against the university power structure was the judicial system,” McGettigan told Inside Higher Ed. The end result of this case was a settlement reached between McGettican, the schools Chancellor and The Board of Governors on the grounds of violation of the professors first amendment rights and defamation. Source: Roll, N. (2017, September 29). Colorado State, professor settle First Amendment lawsuit. Retrieved from https://www.insidehighered.com/news/2017/09/29/colorado-state-profe ssor-settle-first-amendment-lawsuit