THE LAW OF HIGHER EDUCATION
WILLIAM A. KAPLIN
BARBARA A. LEE
The views expressed herein are to be attributed to the authors and not to the National Association of College and University Attorneys. This publication is intended for general informational purposes only and does not constitute legal advice. An attorney should be consulted regarding the specific facts and circumstances associated with any legal matter or case.
Copyright © 2007 by William A. Kaplin and Barbara A. Lee.
All rights reserved, except that instructors may copy or download appendices B and C for use as handouts to students enrolled in their course.
TABLE OF CONTENTS
I. PURPOSE, ORGANIZATION, AND CONTENT OF
THE STUDENT EDITION 1
1. Purpose of the Text 1
2. How We Developed the Student Edition 1
3. New Material in the Student Edition 1
4. Organization and Content of the Student Edition 2
5. Terminology Used in the Student Edition 3
6. Recommendations for Using the Student Edition and
Keeping Up-to-Date 4
II. THE AUDIENCE FOR THE STUDENT EDITION:
EDUCATORS VS. LAWYERS 5
III. ORGANIZING THE COURSE 6
IV. AUXILIARY RESOURCES AVAILABLE FOR USE WITH
THE STUDENT EDITION 9
1. The Teaching Materials (CPM) 9
2. The Full 4th Edition (“LHE 4th”) 11
3. The Periodic Updates (New Developments) 12
V. USING PROBLEMS AND PROBLEM SOLVING AS AN
INTEGRAL PART OF THE COURSE 13
APPENDIX A – Sample Course Syllabi A-1
1. SYLLABUS NO. 1 A-2
2. SYLLABUS NO. 2 A-7
3. SYLLABUS NO. 3 A-12
APPENDIX B – Simulation Exercises B-1
APPENDIX C – The Legal Problem-Solving Process C-1
This is the Instructor’s Manual for the Student Edition* of our treatise, The Law of Higher Education, 4th ed.** Information about both books, and about auxiliary resources that accompany the books, is available on The Law of Higher Education Web Page (http://www.nacua.org/publications/lohe/index.asp), hosted for us by the National Association of College and University Attorneys.
In this Manual, we have collected and set out our observations and suggestions on “teaching from” the Student Edition – that is, using it as the text (or one of the texts) for a higher education law course in a graduate school of education or a law school. Although we do not address other instructional uses in this Manual, we think that the Student Edition also could be a useful text or resource for graduate courses in higher education administration, higher education policy, or higher education governance, for some upper-level undergraduate courses, and for in-service training programs for professionals on the staffs of colleges and universities.
We would be delighted to hear from instructors who have used or are considering using the Student Edition as a course text. Feedback is important to us. We also would be pleased to receive copies of course syllabi from instructors who have adopted the Student Edition. Please send comments and syllabi to: firstname.lastname@example.org.
William A. Kaplin
Barbara A. Lee
New Brunswick, N.J.
PURPOSE, ORGANIZATION, AND CONTENT OF THE STUDENT EDITION
1. Purpose of the text.
The Student Edition of our two-volume work, The Law of Higher Education (4th edition, 2006) (“LHE 4th” or “full 4th Edition”), has the specific goal of supporting the effective teaching and learning of higher education law. To accomplish this goal, the Student Edition presents foundational principles and concepts, in-depth analysis, and practical suggestions on a wide array of legal issues faced by public and private colleges and universities. The discussions draw upon pertinent court opinions, constitutional provisions, statutes, administrative agency regulations, and related research and scholarship.
2. How We Developed the Student Edition
We designed the Student Edition primarily for use in higher education law courses in graduate schools of education and law schools. We selected the topics from the full 4th Edition that we believe are of greatest importance and interest to students and their instructors. The issues we emphasize for each topic are usually ones that administrators, faculty members, or students could encounter at virtually any institution of higher education in the country (or, sometimes, in the world). In developing these issues, we focus not only on the applicable law, but also on pertinent policy considerations and on implications for practice.
Instructors interested in further cases, discussion, or bibliographical cites on particular topics or issues are invited to consult the crosswalk to LHE 4th that appears in the front matter of the Student Edition. For instructors interested in topics that we have omitted from the Student Edition, we suggest that you consult the Table of Contents of LHE 4th, available on our Law of Higher Education Web Page (http://www.nacua.org/publications/lohe/index.asp).
3. New Material in the Student Edition
The Student Edition also includes new material not found in the full 4th Edition. Some of this material updates discussions in the full 4th Edition, which was published about a year before the Student Edition, or adds occasional new points of particular interest to students. The larger portion of the new material, however, is comprised of numerous study aids designed specifically for instructors to use with their students. These study aids include:
• New introductory materials, titled “General Introduction to the Study of Higher Education Law,” that lay the conceptual foundation for study of, the subject matter and also provide guidance for students who do not have background or training in the law.
• An appendix (Appendix B) that provides an overview of the American system of courts and highlights key distinctions between federal and state courts, and between trial and appellate courts.
• An appendix (Appendix C) that provides practical guidelines for reading and analyzing judicial opinions.
• An appendix (Appendix D) that contains a glossary of legal terms used in the Student Edition.
• Overviews at the beginning of chapters (in italic) that introduce the topics and concepts to be addressed in each chapter.
• Six graphics (or figures), spread throughout the book that illustrate particular legal concepts and distinctions.
• A crosswalk (in the front matter) that connects each section in the Student Edition to the corresponding section in the full 4th Edition, and is designed for instructors and students who may seek additional discussion, cases, or bibliographical resources available in LHE 4th.
In addition to these study aids that are incorporated into the Student Edition, we also have prepared a separate volume of edited cases and practice problems, keyed to the Student Edition, which is available to instructors for distribution to students. (See Part IV(1) below.)
4. Organization and Content of the Student Edition
The Student Edition is organized into five parts:
• Perspectives and Foundations
• The College and Its Governing Board, Personnel, and Agents
• The College and Its Faculty
• The College and Its Students
• The College and the Outside World.
In turn, these five parts are divided into eleven chapters, preceded by a General Introduction. Each chapter is divided into numerous sections and subsections with their own titles. The content of the chapters is as follows:
• Chapter One provides a framework for understanding and integrating what is presented in subsequent chapters and a perspective for assimilating future legal developments.
• Chapter Two addresses foundational concepts concerning legal liability, preventive law, and the processes of litigation and alternative dispute resolution.
• Chapter Three through Chapter Nine develop the legal concepts and issues that define the internal relationships among the various members of the campus community, and address the law’s impact on particular roles, functions, and responsibilities of students, faculty members, and trustees and administrators.
• Chapter Ten focuses on the postsecondary institution’s external relationships with government at the federal, state, and local levels. This chapter examines broad questions of governmental power and process that cut across all the internal relationships and administrative functions considered in Chapters Three through Nine.
• Chapter Eleven also addresses the institution’s external relationships, but the relationships are those with the private sector rather than with government. This chapter reviews the various national and regional education associations with which postsecondary institutions interact, as well as the various research ventures in which institutions engage with private entities from the commercial world.
Further description of each chapter’s content is included in the overviews (in italic) that are of the beginning of each chapter.
5. Terminology Used in the Student Edition
We have endeavored throughout the text to use terminology that is accessible to both education and law students. For students or instructors who may need help with terminology, we have provided it in two ways. First, the Preface to the Student Edition includes a section on “Nomenclature and Definition of Terms” that explains key terms such as “postsecondary education,” “University,” “public institution,” and “private institution.” Second, Appendix D to the Student Edition contains a Glossary that defines the various legal terms that we use in the text, and each such term appears in bold face the first time it appears in the text.
6. Recommendations for Using the Student Edition and Keeping Up-to-Date
Numerous recommendations on using the Student Edition are included in Parts II through V of this Instructor’s Manual. In addition, we have two precautions about using the Student Edition that instructors may wish to review with their students:
First, the legal analyses and practical suggestions in the book are not adapted to the law of any particular state or to the circumstances of any particular postsecondary institution. Furthermore, the book is not a substitute for the advice of legal counsel, or a substitute for further research into the legal authorities and factual circumstances that pertain to particular legal problems that face an institution, administrator, student, or faculty member in real life.
Second, the Student Edition is not necessarily the latest word on the law. The law moves especially fast in its applications to postsecondary education. Thus, we suggest that instructors and students keep abreast of ongoing developments concerning the topics and issues in this book. Various aids available for this purpose are described in the Preface to the Student Edition. In particular, we recommend that instructors use our Law of Higher Education Web page, hosted by the National Association of College and University Attorneys (NACUA) (http://www.nacua.org/publications/lohe/index.asp), on which we post pertinent new developments keyed to the Student Edition (see Part IV(3) of this Manual). Periodically (perhaps every two years), we expect to organize and expand these postings into a supplement for the Student Edition, to be published by NACUA.
There also are two specialty journals, both of which we recommend, and both of which provide extended legal analysis on recent developments, as well as classical concerns: The Journal of College and University Law, published by NACUA, and the Journal of Law and Education, published by the Jefferson Lawbook Company (which covers elementary and secondary as well as postsecondary education).
THE AUDIENCE FOR THE STUDENT EDITION: EDUCATORS VS. LAWYERS
We have designed the Student Edition for use not only by law students but also by education students (and students in related fields) who may not have prior training or background in law. The General Introduction to the Student Edition speaks directly to both groups. The text of the eleven chapters is written in a style accessible to both groups. Moreover, we have auxiliary teaching materials (see Parts IV(1) & V below), with cases that are edited, and notes and questions that are crafted, to accommodate the needs and perspectives of both groups; and with problems and problem-solving exercises that are designed to be addressed from the perspective of either group – or from the perspectives of both, thereby allowing for comparison and accommodation of viewpoints, as well as collaborative problem-solving experiences.
Instructors will want to advise students without legal background to pay particular attention to the suggestions and cited resources in section F of the Student Edition’s General Introduction, as well as to the four appendices at the back of the text: the U.S. Constitution, the American Court System, Reading and Analyzing Court Opinions, and Glossary of Legal Terms.
It follows, from this description of the student audience for the Student Edition, that the text also may be used by both instructors who are lawyers and those whose professional training or background is in administration, policy making, or some other education-related field. Instructors without legal training should find the resources cited in Section F of the General Introduction and the material in the appendices to be particularly helpful the first few times they offer the course.
In courses for education students and courses that mix education students together with law students, instructors should use the Student Edition with an important caution in mind: Educators need not learn to know the law like lawyers know the law, to analyze problems like lawyers do, or to perform the functions that lawyers perform. In real-world settings, there are (or should be) lawyers available to do these things. It is important for instructors to impress upon education students that educators, administrators, and public policy-makers have different roles -- in which it is more critical to know about law than to know the law; more critical to know how to analyze problems from their own discipline’s perspective, against the backdrop of law, than to analyze problems from the lawyer’s perspective; and more critical to know how to work with lawyers in performing their own functions, than to perform the lawyers’ functions for them.
ORGANIZING THE COURSE
The Student Edition has a General Introduction followed by 11 chapters, each with numerous sections and subsections (see Part I(4) of this Manual). The organization and content allow instructors flexibility to delete particular sections or subsections from their assignments for the course; to add additional material to their assignments, including readings from the full 4th Edition (LHE 4th) on topics not covered in the Student Edition (see Part IV(2) of this Manual); and to change the order of topics assigned from the Student Edition. In addition, instructors have flexibility to add cases and/or problems from our teaching materials (CPM: Student Edition) to course assignments, as discussed in Parts IV(1) & V below. All these case materials and problems are keyed to the Student Edition.
Here are some further suggestions about course organization:
1. We suggest that courses begin either with the General Introduction (pp. 1-8) or with Chapter I, Sections 1.1 and 1.2 (pp. 11-18). These readings, taken together, would make a good first assignment for a one-hour class meeting.
Caution: Part A of the General Introduction (The Universe of Education Law) introduces the distinction between higher education and K-12 education. While it is important for instructors to emphasize this distinction, which is deeply imbedded in the law, we suggest that instructors also provide an alternative perspective for their students. According to this emerging perspective, there are important interrelationships between higher education and K-12 education, such that problems and challenges at one level often may have serious effects on the other. For this reason, there is now a gradual trend toward viewing formal education as a continuum rather than a series of distinct stages (pre-K, K-12, undergraduate, graduate). This viewpoint has important implications for the governance of education, and at a minimum suggests that the almost total separation between higher education and K-12 education in state and federal governance structures must be breached to encourage more cooperation between the two levels.
2. We suggest that all (or almost all) of chapter I be assigned at the beginning of the course. Preceded by the General Introduction, it would make a good first assignment for a two- or three-hour class meeting. Students should be able to absorb most of these materials on their own without substantial lecturing by the instructor. There is, however, much in these sections (especially sections 1.5 and 1.6) that would provide the basis for challenging and interesting discussions, if the instructor so chooses.
3. In making coverage choices, instructors should be helped not only by our detailed table of contents for the Student Edition but also by the brief overviews that appear in the text at the beginning of each chapter.
4. Probably the major choice about the order of assignments arises with respect to Part Three (“The College and Its Faculty”) and Part Four (“The College and Its Students”) of the Student Edition. For courses focusing on student affairs, some instructors may wish to reverse the order of these two Parts. Moreover, in student affairs courses, instructors may want to give more emphasis to Part Four than to Part Three; and in courses focusing on academic affairs, instructors may want to give more emphasis to Part Three than to Part Four.
Caution: In courses emphasizing student affairs (Part Four), instructors likely will want to cover, at a minimum, section 6.2 of the Part Three materials; and in courses emphasizing academic affairs (Part Three), instructors likely will want to cover, at a minimum, sections 7.1.4, 7.7.2, 8.3, and 8.7 of the Part Four materials.
5. Another choice regarding the order of assignments may arise with Chapters II and III. Most of this material could be addressed either near the beginning or near the end of a course. If the instructor decides to move this material to the end of the course, we recommend that Section 3.1 nevertheless remain at the beginning, since it introduces students to the college or university as a legal entity apart from its administrators and faculty.
6. For instructors seeking to skip or move very quickly over certain blocks of material in the Student Edition, the best places to look for possibilities often will be Chapter IV (“The College and Its Employees”) and Chapter XI (“The College and External Private Entities”). The instructor’s specific course goals will dictate whether any, or how much, of these materials need to be covered.
Caution: In courses for students who are, or are about to be, staff members at higher education institutions, the instructor may identify the development of professionalism as a course goal. In this circumstance, we recommend that the course cover at least the first four sections of Chapter IV. Also, in courses that cover the application to faculty of federal nondiscrimination laws (Chapter V, Section 5.4), we recommend that instructors cover at least Sections 4.5 and 4.6 of Chapter IV.
AUXILIARY RESOURCES AVAILABLE FOR USE WITH THE STUDENT EDITION
The Student Edition, along with periodic updates that we post on our Law of Higher Education Web page (see 3 below), stands on its own as a course text. Instructors need not combine it with any other texts or readings. On the other hand, if instructors do wish to supplement the Student Edition with other resources – for example, to add additional topics or to facilitate a particular teaching method – we have made it easy to do so. In particular, we have teaching materials, available to instructors free of charge that are keyed to the Student Edition and will support an instructor’s use of the case method, the problem-based method, or both. And our full 4th Edition, which addresses various topics beyond those in the Student Edition, will support an instructor’s efforts to broaden, or add a special emphasis to, the course. These auxiliary resources – our teaching materials and full 4th Edition – are described below, along with suggestions for using them. A third auxiliary resource, our periodic updates on our Web page, is then discussed to round out the picture.
1. The Teaching Materials
Cases, Problems, and Materials for use with The Law of Higher Education Fourth Edition: Student Version (hereinafter CPM: Student Edition, or CPM) is a volume of teaching materials for classroom use that we make available in electronic format free of charge for instructors who adopt the Student Edition as a required text. CPM: Student Edition is published by the National Association of College and University Attorneys (which also publishes a separate volume of our teaching materials for instructors who adopt the full 4th Edition as a course text). Any instructor who has adopted the Student Edition as a required course text may download and reproduce CPM (or portions of it) for distribution to the students in the course. No other reproduction, distribution, or transmission is permitted. Hard copies of CPM may also be purchased at cost from NACUA. Instructions for downloading and purchasing are on our Web page (http://www.nacua.org/publications/lohe/index.asp). Direct requests and further inquires to:
Manager of Publications
National Association of College and University Attorneys
Suite 620, One Dupont Circle, NW
Washington, D.C. 20036
(202) 833-8390; fax (202) 296-8379
CPM: Student Edition is divided into two parts. Part I contains three types of materials: court opinions that we have carefully edited and keyed to the Student Edition and that illustrate selected facets of the law’s development; notes and questions on the cases to stimulate discussion and enhance understanding of each case’s broader law and policy implications; and short, narrowly focused practice problems that explore the law’s concrete applications, and which are designed to elicit discussion of particular issues. Answer guidelines for each problem are included in an appendix. Part II of CPM is a series of “large-scale” problem-solving exercises whose issues are not confined to a single section or chapter of CPM or the Student Edition. In a formal course, these problem exercises may be used periodically to integrate knowledge or to practice professional roles in problem solving; or they may be used for end-of-course review and synthesis, independent study, or as the basis for research and writing assignments or examinations. Preceding the first of the large-scale problem exercises is a proposed set of directions and a proposed set of basic questions for problem review. Guidelines for working through each problem, with references to pertinent sections of the Student Edition, are also contained in an appendix. (Instructors may wish to defer student access to these answer guidelines, and to those for the Part I problems, until students have completed the problem.)
There are two basic ways in which instructors may use CPM in conjunction with the Student Edition:
(1) The instructor may use the Student Edition as the primary resource and CPM as a secondary resource. The Student Edition would then be the main source of assigned readings and the main support for class presentations and discussions, while selected materials from CPM would be used for illustrating particular points of presentations and discussions, and/or for problem solving practice, writing assignments, or independent study. CPM’s availability in electronic format will facilitate this type of selective use and allow instructors to integrate other teaching materials with those in CPM.
(2) The instructor may use CPM as the primary resource and the Student Edition as a parallel or secondary resource. CPM would then be a regular source of assigned readings and the main support for class discussions, case analysis, simulations, or other problem-solving exercises. The Student Edition would be a source for assigned background readings, independent study of particular topics, assistance with problems and questions in CPM, and general review and synthesis. In addition, the Student Edition could be a basic resource for students doing research papers, memos, or other projects.
Instructors, of course, also may devise variants of these two basic approaches to suit their particular pedagogical styles and goals, or – having adopted the Student Edition as a course text – may simply use CPM as a personal resource for planning purposes or a resource for exam questions.
2. The Full Fourth Edition (“LHE 4th”)
The Law of Higher Education, 4th ed., is a comprehensive treatise designed for college and university attorneys, officers and administrators, trustees, faculties, and staffs. It organizes and conceptualizes the entire range of legal considerations pertinent to the operation of colleges and universities. Being more comprehensive than the Student Edition, LHE 4th is in two volumes comprising fifteen chapters. The table of contents of LHE 4th is available on our Web page hosted by NACUA (see above).
For certain advanced doctoral courses, some instructors may prefer to use the full fourth edition, rather than the Student Edition, as the course text – particularly if the doctoral students are likely to want to keep the treatise as a professional resource. But our focus here is on ways that instructors could use LHE 4th to support teaching and learning in courses where the Student Edition is the assigned text. For these purposes, we are assuming that the instructor would arrange to have a copy of the full 4th edition placed on library reserve.
Instructors may find the full 4th edition (LHE 4th) helpful in one or more of these ways:
• LHE 4th can provide analysis and suggested resources for additional topics, beyond those in the Student Edition, that instructors may wish to cover in their courses. Similarly, LHE 4th can provide more extended discussion, and additional case examples and practical suggestions, for certain topics that are in the Student Edition but to which the instructor wishes to give extra emphasis. The preface to the Student Edition reviews the topics from LHE 4th that we have omitted from, or compressed in, the Student Edition.
• LHE 4th can be a helpful resource for students choosing research topics or doing research papers. LHE 4th can serve this need because it covers more topics than the Student Edition, includes more case examples, contains more text cites and footnotes identifying useful resources, and includes a Selected Annotated Bibliography at the end of each of its fifteen chapters.
• LHE 4th can be a useful resource for instructors as they prepare particular classes. Instructors wishing additional background or grounding on particular topics that they plan to cover, for instance, can read the section in LHE 4th that parallels the Student Edition section they assign to the students, or can consult one of the resources cited in the chapter Bibliographies in LHE 4th. Instructors seeking additional case examples for class discussion, or additional suggestions on implications for practice, may also find them in the more expansive discussions in LHE 4th. In addition, instructors seeking to extend discussion of a particular Student Edition topic by addressing an additional, related topic may find such related topics in LHE 4th. (For example, an instructor covering student support services in class may extend the discussion beyond the topics in Section 7.7 of the Student Edition by addressing one of the other support services discussed in LHE 4th Sections 8.7.2, 8.7.5, or 8.7.6.)
To help instructors and students use LHE 4th in these ways, the Student Edition contains, in its front matter, a Crosswalk that connects each section of the Student Edition to the corresponding section of LHE 4th. For instructors who do not yet have access to a copy of LHE 4th, the full table of contents is available on our Website hosted by NACUA (http://www.nacua.org/publications/lohe/index.asp). (The Crosswalk is also posted on the Website.)
3. The Periodic Updates (New Developments)
Because, the law moves especially quickly in its applications to higher education (see Part I(6) above), instructors will want to have efficient ways to keep abreast of new and ongoing developments concerning the topics and issues they address in their courses. To meet this need, we have established a “new developments” section on The Law of Higher Education Website (http://www.nacua.org/publications/lohe/index.asp). Accessible to both instructors and students, this section includes new developments, clarifications, and errata that we post on a continuing basis to update and supplement the Student Edition. We also plan to integrate these postings periodically (perhaps every two years or so) into cumulative supplements for the Student Edition that will be available through NACUA.
In addition, the preface of the Student Edition contains numerous recommendations on other resources that instructors or students may wish to consult to stay up to date on the topics in the Student Edition or other topics being explored via independent study or research.
USING PROBLEMS AND PROBLEM SOLVING
AS AN INTEGRAL PART OF THE COURSE
We think that problem-based learning (PBL) and its cousin, collaborative learning, can be particularly effective in higher education law courses. We therefore recommend that instructors assign practice problems as part of the course work and dedicate part of class time to problem-solving practice. Problems could be used periodically throughout the course or could be reserved for the end stage of the course. Instructors who choose not to use problems in this way may nevertheless find it beneficial to provide problems to students for their own independent study.
These uses of problems are facilitated by our teaching materials, CPM: Student Edition (see Part IV(1) above). Instructors can match the small-scale, targeted problems in Part I of CPM to particular topics from the Student Edition and thus use problems throughout the course. Instructors can use the large-scale problem-solving exercises in Part II of CPM at transitional points in the course after covering the various topics highlighted in the exercise, or at the end of the course for purposes of review and integration of materials covered earlier. For both the small-scale and large-scale problems, instructors can assign the answer guidelines (in Appendices A and B of CPM) for student review of problems that they have completed; and instructors can use the guidelines themselves in preparing for class discussion of problems or in preparing to grade students’ written responses to problems. The answer guidelines include numerous references to pertinent sections of the Student Edition, some or all of which instructors may use as assigned reading prior to doing the problem or recommend to students as a resource to consult while doing the problem. In addition, for the large-scale problems, Part II of CPM contains suggestions on role-playing and general questions to use for reviewing the large-scale problems in class. (Instructors may also adapt these suggestions and questions to problems that they devise themselves.)
The large-scale problems in CPM Part II also lend themselves to use in simulation exercises that place students in professional roles. In courses for education students, the students could assume the roles of administrators; in courses for law students, they could assume the roles of attorneys; and in mixed courses, both types of roles could be represented in the same problem. Instructors in courses for education students may wish to recruit lawyers from their institution’s office of general counsel or professors from the law school to play lawyer roles in simulations; similarly, instructors in courses for law students may wish to recruit professionals from their institution’s administration and staff to play administrator roles in simulations. Appendix B to this Instructor’s Manual contains a handout introducing students to simulation exercises. Although this handout was drafted for law students, instructors can readily adapt it for education students, as well.
Regardless of how much or little time they spend on problems in the course, many instructors may want to introduce students to the legal problem-solving process, i.e., the process that lawyers go through in advising clients with higher education law problems. Appendix C to this Instructor’s Manual contains a step-by-step process for addressing and resolving a client’s legal problem. For law students, these steps provide a guide for their work as lawyers. For education students, the steps provide an inside view of how lawyers work on education law problems, which in turn can help education students understand how to work effectively with legal counsel.
For discussion of the pedagogical values of problem-solving exercises, along with suggestions for using such exercises, see, e.g., Kurtz, Wylie, and Gold, “Problem-Based Learning: An Alternative Approach To Legal Education,” 13 Dalhousie L.J. 797 (1990); Cockrell, Caplow, & Donaldson, “ A Context for Learning: Collaborative Groups in the Problem-Based Learning Environment,” 23 The Review of Higher Education 347 (2000); Nathanson, “The Role of Problem Solving in Legal Education,” 39 J. of Legal Educ. 167 (1989); Moskovitz, “Beyond the Case Method: It’s Time to Teach with Problems,” 42 J. of Legal Educ. 241 (1992); and see generally Kenneth Bruffee, Collaborative Learning (Johns Hopkins U. Press, 2d ed. 1999). These materials draw upon the psychology of learning and would be useful guides whether the setting is a law school, a graduate school of education, or a professional workshop.
Sample Course Syllabi
This Appendix contains three course syllabi developed by three different instructors for three different courses. We present them here as examples of how higher education law courses might be focused and organized. Syllabus No. 1 and Syllabus No. 2 are for courses offered in a graduate school of education; Syllabus No. 3 is for a course offered in a law school. We have made minor edits in each syllabus and have also deleted a glossary of terms from Syllabus No. 2.
These courses were offered prior to the publication of the Student Edition. The assigned readings in the first and second syllabus are from the full 4th Edition. Instructors can locate the parallel sections in the Student Edition by using the Crosswalk in the front of the book.
The three syllabi remain the property of the instructors. Other instructors who would like to use portions of one of these syllabi for their own courses should contact the instructor listed on that syllabus.
SYLLABUS NO. 1
University of Washington
HIGHER EDUCATION AND THE LAW
Course Syllabus and Reference List
Winter Quarter 2007
Steven G. Olswang
I. Goals and Objectives
This course is designed to expose the student to the vast range of administrative problems at the college and university level that have legal implications. The information and experiences generated from this course should ultimately assist current and prospective college and university faculty and administrators in recognizing the legal parameters around which decisions are made.
No attempt will be made in this course to provide definitive legal answers to particular problems. Such tasks remain within the domain of law schools, institutional attorneys, state attorneys general, and ultimately, the courts. The overall objective of the course is to provide illustrations of the legal issues involved in academic decision making so that one might be able to recognize a legal problem and seek the necessary assistance and guidance.
II. Course Procedures
The nature of the course requires that it be conducted in a mixed lecture and seminar format. The instructors will undertake responsibility for outlining and structuring the problem areas and discussing the major legal issues involved. Students will be expected to have completed the readings for each class session in order to participate in the discussion of these matters.
Law is more than just a collection of rules to be followed. It involves history, philosophy, sociology, human relations, and other disciplines in its formulation and reformulation. For this reason, discussion is highly appropriate at all times. While the law may dictate specific requirements in a particular instance, the philosophical principles behind such law will be as much a subject of this course as the particulars of the law.
A. No examination will be given.
B. During the course of the quarter, two factual problems will be distributed. These factual problems will relate to the subject matter already discussed [or to be discussed at] the next class session. Each student is required to answer each of the problems in writing (maximum length five pages, typed, double-spaced). Two copies of the paper must be turned in at the beginning of the next class session for the paper to be counted.
Papers should not be detailed legal briefs, though references to the resources relied on are required. Papers should reflect an understanding of the legal issues and decisions affecting the problem area, an explanation of the current law, as well as discussion of alternatives available. A recommendation for what action to take is mandatory.
A. 80% of the final grade will be based upon the problem papers submitted by the student (40% per paper).
B. 20% of the final grade will be based upon class participation.
The required text for the course is:
Kaplin, William A. and Barbara A. Lee, The Law of Higher Education, Fourth Edition, San Francisco: Jossey-Bass Publishers, 2006.
Course Schedule and Reading List
Session I: Introduction to the Course
(Jan 4) Introduction to the Law and the Judicial System
Law in American Colleges and Universities
The Public / Private Dichotomy
Kaplin & Lee, pp. 29-75 [§§ 1.4 - 1.6];
Michaelson, Beneath the Surface: The Practice of Law at U.S. Colleges and Universities. Change 11 (May/June 2003).
Session II: Academic Freedom
(Jan 11) Academic Bill of Rights
First Amendment Free Speech
Role of the University in Regulating Political Speech
Kaplin & Lee, pp. 605-722 [§§ 7.1 - 7.8];
Cameron, Meyers & Olswang, Academic Bills of Rights: Conflict in the Classroom. 31(2) Journal of College and University Law 243-290 (2005).
Association of American Colleges and Universities, Academic Freedom and Educational Responsibility (2006).
Session III: Faculty Hiring, Appointment, Promotion & Tenure
(Jan 18) Due Process in Faculty Matters
Terminations for Cause
Post Tenure Review
Kaplin & Lee, pp. 469-490; 522-578 [§§ 6.1, 6.2, 6.5, 6.6, 6.7].
Euben & Lee, Faculty Discipline: Legal and Policy Issues in Dealing with Faculty Misconduct, 32(2) Journal of College and University Law 241-308 (2006).
Session IV: Faculty Rights, Obligations, and Protections
(Jan 25) Technology Transfer
Conflicts of Interest
Special Guest: Dr. Clark Shores
Assistant Attorney General
Kaplin & Lee, pp. 303-332; 1334-1406; 1640-1662 [§§ 4.6, 13.2.5 - 13.2.15, 15.4].
Session V: Nondiscrimination and Affirmative Action
Special Guest: Mr. Michael Madden
Bennett, Bigelow & Leedom
Kaplin & Lee, pp. 371-462; 501-528; 758-808 [§§ 5.1 - 5.5, 6.4 - 6.5, 8.2.4 - 8.2.6].
White, Judicial Threats to Academe’s Four Freedoms. Chronicle of Higher Education, B6-B8 (Dec. 1, 2006)
Session VI: Student Admissions
(Feb 8) Student Academic Rights and Responsibilities
Student Discipline and Dismissal
Kaplin & Lee, pp. 725-808; 910-993; 1029-1041 [§§ 8.1 - 8.2.6, 9.1 - 9.4, 9.7].
Session VII: Student Organization
(Feb 15) Student Fees
Student Speech and Publication
Kaplin & Lee, pp. 854-901; 993-1029; 1050-1114 [§§ 8.4 - 8.7.5, 9.5 - 9.6, 10.1 - 10.3].
Session VIII: Retrenchment and Financial Emergency
(Feb 22) Degree, Program and School Closure
Kaplin & Lee, pp. 579-597 [§ 6.8];
Olswang, Babbitt, Cameron & Kamai, Retrenchment. 30(1) Journal of College and University Law, 47-74 (2003).
Session IX: Liability and Risk Management
Special Guest: Ms. Elizabeth Cherry
Director of Risk Management
University of Washington
Kaplin & Lee, pp. 150-160; 189-224; 332-357 [§§ 2.5, 3.3, 4.7];
Session X: International Education
(Mar 8) Immigration / Visa Issues
Labor / Management Relations
Public Records / Open Meetings
Kaplin & Lee, pp. 272-303; 1273-1292; 1313-1334; 1530-1581 [§§ 4.3.5 - 4.3.6, 4.4 - 4.5, 12.5, 13.2.1 - 13.2.4, 14.3 - 14.4].
SYLLABUS NO. 2
Washington State University
Department of Educational Leadership and Counseling Psychology
Higher Education and Student Affairs Program
ED AD 578: Higher Education Law and Ethics
Wednesday, 7:10 – 10:00
Instructor: Michael Pavel, Associate Professor
I. Style for all writing assignments: APA
II. Purpose of Course
This course is to provide graduate students with an understanding of the law and ethics in American higher education. A vast array of legal matters has emerged in America’s colleges and universities over the last 25 to 30 years. No individual involved in some aspect of higher education can afford to be uninformed about the basics of higher education law; clearly the more informed you are the better you may be able to avoid costly law suits and unflattering journalistic coverage. This graduate level course will be very demanding and introduce you to the broad range of legal considerations within the scope of higher education while focusing on The College and Its Employees and The College and Its Students. Important learning outcomes of this course are for you to: (a) analyze legal developments in higher education, (b) identify legal trends in your particular area of professional interest, (c) track the implications of legal violations, and (d) explain legal developments within the context of academic practices and values. Higher Education and Student Affairs Program learning outcomes decided by the class include:
1. Communication: Students will write, speak, and listen to achieve intended and meaningful understanding; they will demonstrate communication by their ability to:
• Communicate in writing, speech, and presentation in order to convey meaning, significance, emotion and values in and beyond peer groups.
• Appreciate background and interests of a group or audience and how this impacts the exchange of information.
• Visually express ideas, propositions, and beliefs in coherent, concise, and technically correct forms effective with general and disciplinary audiences.
• Engage effectively with each other through listening and speaking one-on-one, in small groups, and in large groups.
2. Specialty: Students will hone a specialty in law for the benefit of themselves, their communities, their employers, and for society at large. Graduates will demonstrate expertise in law and ethics of higher education by their ability to:
• Show a depth of knowledge within higher education law and ethics that reflects an appropriate degree of specialization.
• Show a breadth of knowledge within higher education law and ethics based on integration of its history, core methods, techniques, vocabulary, and unsolved problems.
• Apply the concepts of the within higher education law and ethics to personal, academic, service learning, professional, and/or community activities.
• Understand how the methods and concepts of the within higher education law and ethics relate to those of other disciplines, and possess the ability to engage in cross-disciplinary activities.
III. Course Content
The content of this course is designed to help you become well-informed about the law of higher education. Basic to the course is to ensure that you are given exposure to material dealing with: Legal Terminology, Overview of Postsecondary Education Law, Trustees, Administrators, and Employees, Faculty, Students, Local Governments, State Governments, Federal Government, Educational Associations and Business/Industrial Community
Second, the course content is intended to develop your ability to: (a) critically evaluate the strengths, limitations, and underlying assumptions of legal developments, (b) understand the socio-cultural and educational context related to the development of higher education law, and (c) apply knowledge of higher education law to your particular professional areas of interests.
IV. Instructional Techniques
This course will be conducted as a graduate level seminar. When appropriate, classes will begin with hypotheticals, and then flow into an overview lecture of key areas within the assigned readings with invited student insights. Each student should come to class prepared to engage other seminar members over the issues and ideas emanating from the assigned readings. In preparing for every class, each student should record major points as well as be ready to pose at least two questions to the class from assigned readings to initiate and contribute to the class dialogue. Relevant readings are assigned and should be read prior to each seminar dialogue. In addition to creating an intellectual environment that inspires new thinking, the seminar will be conducted in a manner that will develop student comprehension and understanding of law and ethics in higher education.
V. Grading System: A = 90 - 100%, B = 80 - 89%, Incomplete or Fail = < 80%
• Class Summaries & Attendance 65%
• Legal Summary and Recommendation Paper and Presentation 35%
VI. Required Text
Kaplin, W. A., & Lee, B. A. (2006). The law of higher education: A comprehensive guide to legal implications of administrative decision making, Vols. I & II. San Francisco: Jossey-Bass.
VII. Course Schedule
Week Date Reading and Class Assignments
1 1-10 Course overview and creating community
2 1-17 Getting a feel for Kaplin and Lee (i.e., scan the required text) and legal terminology (see handout).
3 1-24 Overview of Postsecondary Education Law, Kaplin & Lee, (2006),
pp. 3-80 [§§ 1.1 - 1.7]
4 1-31 Legal Planning and Dispute Resolution, Kaplin & Lee, (2006), pp. 90-159
[§§ 2.1 - 2.5]
5 2-7 The College and Its Trustees and Officers, Kaplin & Lee, (2006), pp. 167-249 [§§ 3.1 - 3.6]
6 2-14 The College and Its Employees, Kaplin & Lee, (2006), pp. 255-364
[§§ 4.1 - 4.8]
7 2-21 The College and Its Employees: Nondiscrimination and Affirmative Action in Employment, Kaplin & Lee, (2006), pp. 371-461 [§§ 5.1 - 5.5]
8 2-28 The College and Its Students: The Student-Institution Relationship, Kaplin & Lee, (2006), pp. 725-807 [§§ 8.1 - 8.2]
9 3-7 The College and Its Students: The Student-Institution Relationship, Kaplin & Lee, (2006), pp. 808-900 [§§ 8.3 - 8.7]
3-14 SPRING BREAK
10 3-21 The College and Its Students: Rights and Responsibilities of Individual Students, Kaplin & Lee, (2006), pp. 910-992 [§§ 9.1 - 9.4]
11 3-28 The College and Its Students: Rights and Responsibilities of Individual Students, Kaplin & Lee, (2006), pp. 993-1040 [§§ 9.5 - 9.7]
4-4 The College and Its Students: Rights and Responsibilities of Individual Students, Kaplin & Lee, (2006), pp. 1050-1095 [§§ 10.1 - 10.2]
13 4-11 The College and Its Students: Rights and Responsibilities of Individual Students, Kaplin & Lee, (2006), pp. 1096-1152 [§§ 10.3 - 10.4]
14 4-18 Student Presentations of Legal Summary/Recommendation Paper
15 4-25 Individual Student Presentations of Legal Summary Paper
Legal Summary and Recommendation Paper Prompt
• To summarize a current legal issue in higher education by researching related case studies and situating the current issue historically, using the Kaplin and Lee textbook as one of your primary sources, but not the only source.
• To cultivate the ability to advance recommendations because as a higher education/student affairs administrator, it will be important to make informed decisions and clearly communicate official positions about current legal issues. To do so, one must look to and learn from past cases and decisions.
Role and Audience
• You are a member of a higher education institution’s task force charged with recommending a position and approach to a current legal issue facing your institution. [You choose the issue and have fun with contextualizing it within this assignment. For example, I might begin such a paper by saying, “The reality of recent Supreme Court decisions in Grutter v. Bollinger and Gratz v. Bollinger means that Washington State University again faces a critical juncture in its desire to diversify our student population. This paper will provide a summary of pertinent legal cases to better understand the recommendations advanced in the final section. Although the Grutter and Gratz decisions might cast a shadow upon our past and current efforts to meet the needs of a diverse society, the issue of affirmative action in admissions is not new or uncharted waters for us. The legal summaries to follow will revisit DeFunis, Bakke, Grutter, and Gratz to show how we have been and can continue to be legally sensitive to the issue of diversifying our student population.]
• The audience for your position paper is colleagues and members of upper administration who are somewhat familiar with the issue, but not with related case studies and who have not yet had the opportunity to think deeply about their own positions or possible approaches to addressing the issue.
• Write a legal summary and recommendation paper on a current legal issue of our own choosing (see page 4 of the syllabus for broad topic ideas and the individual sections within the required textbook).
• The introduction should engage the audience and provide them with the organization of the paper and its contents. The body of the paper should address the legal issue by providing summaries related case studies. The last section should advance recommendations based on your understanding of the legal issue.
• 10-12 pages (not including title page or reference list), double-spaced, one-inch margins, APA citation style, headings and subheadings similar to those in the Kaplin and Lee textbook, reference list of all sources.
• The Monday prior to the student presentation (either April 18 or 25), students are required to send the legal issue paper via attachment in Microsoft Word format to Dr. Pavel. No extensions or additional time will be allowed and those that are late will not be graded.
Guidelines for Paper and Class Summaries of Assigned Readings
Legal Summary Paper. Every student will be required to prepare a legal summary paper that includes a summary of an Overview of Postsecondary Education Law from Kaplin and Lee (2006). Each student will then choose a focused topic and provide a legal summary. Choose a topic of interest within one of the following areas:
• Perspectives and Foundations
• Trustees and Officers
• Local Governments
• State Governments
• Federal Government
• Educational Associations
• Business/Industrial Community
The paper will be limited to 12 doubled-spaced pages with one-inch margins. The student should follow APA guidelines when applicable and are required to use the same Chapter and section headings as in the required texts. Students should endeavor to include information from other references sources.
The Monday prior to their presentation (either April 18 or 25), students are required to send the instructor (Dr. Michael Pavel) the legal summary paper via attachment to an email in Microsoft Word format. It is the responsibility of the student to ensure that the instructor can open any attachments sent via email. No extensions or additional time will be allowed. Papers not received on or before the due date will not be considered for grading purposes.
Class Summary of Assigned Readings. Individual students will be assigned sections to summarize (i.e., student number 1 reads and prepares summary for sections 1.1 to 1.3.3, student number 2 sections 1.4.1 to 18.104.22.168, student number 3 sections 1.4.3 to 22.214.171.124, and so on). Two days prior to class (i.e., Monday), students will submit their summary as an email attachment to the instructor. The student summary will highlight important terms, cases, and findings. Students are required to use the same section numeration and headings as in the required text to organize their summary. Each class would then begin by distributing the compiled summaries, followed by an overview lecture from the instructor along with an invitation to have individual students offer brief comments of what was important, interesting, and meaningful to them.
SYLLABUS NO. 3
The Catholic University of America
School of Law
EDUCATION LAW PRACTICE: A SIMULATED LAWYERING EXPERIENCE
I. Course Description
This course uses a variety of instructional formats to examine legal and policy issues in the nation’s systems of public and private education. Higher education is emphasized more than elementary and secondary education. Students are organized into two “law offices,” each of which has an adviser who is an attorney from CUA’s Office of General Counsel. The law offices represent various individual and institutional “clients.” The clients’ problems involve matters such as denial of faculty tenure, control of students with psychiatric problems, misuse of university computer networks, peer sexual harassment, hate speech codes, the review of university affirmative action plans, and home schooling for elementary and secondary students. These problems and the assigned background readings emphasize the particular ways in which civil rights law, constitutional law, contract law, tort law, and administrative law apply to education settings. Simulations and writing assignments that accompany some of the problems help students to develop research, writing, and problem-solving skills and also introduce students to other lawyering competencies such as negotiation, interviewing, counseling, and mediation.
Students enroll for 3, 4, or 5 credits; the required writing assignments and simulation assignments increase as the credit load increases. Successful completion of the course fulfills one-half of the upperclass writing requirement.
Either concurrently with this course or in a subsequent semester, some students may earn additional academic credit in an Education Law Externship at the Catholic University Office of General Counsel.
II. Course Web Page
This course is administered through The West Education Network (TWEN). The course has three TWEN web pages: (1) “Education Law Practice: A Simulated Lawyering Experience;” (2) “Education Law Practice: Law Office A;” and (3) “Education Law Practice: Law Office B.” The first page is the general course web page for the use of all class members. The second two pages are for the use of the respective law offices and may be accessed only by members of the designated office. Most of the handouts for this course and most of the documents for the problems will be posted on these TWEN Web pages, and I will expect you to view and download these materials for your own use.
I will also use the course Web pages for class assignments, course announcements, a course calendar, and communications with law offices or individual students. In turn, you may use these Web pages for communications with me, with your law office adviser, and with other law office members or class members. In addition, the course Web pages will provide useful research links for you as well as a convenient method for reviewing current developments in education law.
You may access TWEN and the course Web pages on the Internet using your Westlaw password. The law office course pages will also require a separate password, which I will give to each of you early in the course. These pages will include forums for each problem for the designated law office (e.g., “Dr. Ito Problem, Law Office A”) in which I will post documents that are not available to the other law office. There are also private E-mail and Discussion forums for each law office.
At a minimum, you should check the general course Web page every Monday and Wednesday morning in case something is posted that you will need to have before class on that day. Once we begin the large-scale problems, you should check your law office Web page every weekday for developments regarding the problem we are doing.
III. Course Goals
This course is designed to help you, in the context of education law and policy, to achieve these goals:
A. to develop the higher-level analytical capacities that are needed when various bodies of substantive law may each apply to a particular problem or field of concern;
B. to improve problem-solving skills and other lawyering skills (research, writing, interviewing, counseling, negotiation, mediation) by practicing, and reflecting on, the art of lawyering;
C. to understand the legal status and legal problems of educational institutions, systems, and associations, especially colleges and universities;
D. to develop relevant comparisons, regarding law and practice, between (1) elementary-secondary education and higher education, and (2) public education and private education; and
E. to become familiar with the roles and professional responsibilities of lawyers that represent governmental or nonprofit organizations or bring claims against them, the various forums in which such lawyers may work, and the collaborative (teamwork) aspects of the practice.
IV. Course Materials
The required texts are Kaplin and Lee, Cases, Problems, and Materials for Use with The Law of Higher Education (“CPM”); and Kaplin and Lee, The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making (4th ed. 2006) (“LHE”). The CPM text is keyed to LHE.
There are also various course materials on the general course TWEN page, and I will post other materials on that page or the law office pages as we proceed through the course. I will also occasionally place materials on reserve for your use or distribute photocopied materials in class.
For your own independent study and research, the major journal in the higher education field is the Journal of College and University Law, which the library has. The Journal of Law and Education, which the library also has, is another leading journal that covers both elementary/secondary education and higher education. Another important resource is West’s Education Law Reporter, which publishes court opinions, case digests, and short articles; it is in the library stacks (KF 4110.A2W47). Other resources for higher education are listed in the bibliographies at the end of each chapter in LHE and., as well as in the footnotes and text citations.
V. Course Content
We will begin with introductions to the American education system, education law, and the legal problem-solving process. We will do two short problems for practice, one on higher education and one on elementary/secondary education. Then we will undertake a series of large-scale problems that comprise the bulk of the course. The first of these problems (“The Professor Ito Problem”) is the primary problem for the course. All students will work on this problem, and we will work on it through most of the course. Generally you will work in teams of two, with assistance from other members of your law office and from your law office’s adviser. We will also explore this problem in class sessions by using various simulations preceded by subject matter briefings, skills briefings, and law office meetings. At the conclusion of this problem we will have an extensive “feedback session” that will help you reflect on what you have learned.
For the other three to five large problems that we will do, we will have fewer simulations and spend relatively less time overall on these problems than we will do for the first problem. Only the 4-credit and 5-credit students will have writing assignments and simulation roles for these other problems; 4-credit students will do one of these other problems, and 5-credit students will do two. All students (3, 4, and 5-credit students) will also do brief written critiques of the problems for which they do not have other writing assignments.
Your law office adviser will be available to help you with all problems for which you have a writing assignment (other than a brief written critique) or a simulation role. I encourage you to contact your adviser with questions about lawyering skills, strategies for the simulations, and substantive law. You may communicate with your adviser by phone, email, or your law office’s Web page. You may also arrange for office conferences at your adviser’s office on campus.
The primary large-scale problem, The Professor Ito Problem, concerns a private university’s denial of a professor’s application for tenure and the legal claims and legal recourse available to the professor. One law office will be attorneys for the professor, and the other law office will be attorneys for the university. We will do all or most of the following simulations in class: (A) Professor Ito’s attorneys will interview their client; (B) the university’s attorneys will interview the university President; (C) Professor Ito’s attorneys will interview a potential witness (a colleague in a different department); (D) the university’s attorneys will interview a potential witness (Prof. Ito’s department chair);
(E) attorneys for each side will meet for at least one negotiation session. A team of two attorneys from each law office will be designated to perform each simulation.
In addition, there will be several writing assignments for the Professor Ito Problem. Each attorney for the professor will prepare a demand letter outlining legal claims and proposed relief; and each attorney for the university will prepare a response to this demand letter. Each attorney for the professor will prepare a legal memorandum for their senior partner that develops their client’s legal claims and suggests next steps to take; and each attorney for the university will prepare a legal memorandum for their senior partner that develops the university’s defenses and suggests next steps to take. All attorneys will, after an individual conference with their senior partner (me), re-write and re-submit their legal memorandum. All attorneys for each side will also prepare at least one other short legal document to be determined at a later time. All writing assignments must be completed and submitted in accordance with due dates and directions that I will provide.
VI. Course Requirements
Three-credit students must complete their simulation assignments and writing assignments for the Professor Ito Problem. Four-credit students must complete the simulation assignments and writing assignments for the Professor Ito Problem, and must also complete a writing assignment and simulation assignment for one other problem. Five-credit students must complete the simulation assignments and writing assignments for the Professor Ito problem, and must also complete the writing assignment and simulation assignment for two other problems. Before completing the re-write of the legal memorandum for the Professor Ito Problem, each student must have an individual office conference with me (the senior partner) on the memo he/she is re-writing.
In addition, all students must do short written critiques for the problems for which they do not have another specific writing assignment. Critiques must be submitted at the beginning of the class at which we conclude each particular problem. I will provide the format that I expect you to follow for each critique.
The specific time schedule and deadlines for written work will depend on the problem. These deadlines and schedules will be specified in assignment sheets, in written role directions, on the calendar in the Calendar forum on the general course TWEN page, or in announcements posted in the Announcements forums on the course or law office
TWEN pages. The re-writes of the legal memorandum for the Professor Ito Problem will all be due on the same date near the end of the exam period.
You must participate actively with your law office on every problem, both in and out of class, whether or not you have a writing or simulation assignment. Five-credit students should expect to have relatively more responsibilities in their law offices than 4-credit students; and 4-credit students should expect relatively more responsibilities than 3-credit students.
The simulations may include various non-legal roles (administrators, clients, witnesses), and I may need help from class members in locating outside persons to play some of these roles. Specifically, you may be individually responsible for recruiting one such person, or your law office may be responsible for recruiting one or two such persons. If so, you may ask persons either inside the university (including other law students) or outside the university who would be suitable to play the role for which you are recruiting.
In addition to the simulations, there will be reading assignments and other assignments for most classes. You must complete these assignments before class and participate actively in class discussions. For each feedback session at the end of a problem, you must review the problem materials and your simulation notes, and participate actively in the class discussion.
VII. Course Grades
Your final course grade will be based on the writing assignments for the Dr. Ito Problem, the writing assignments for other problems (for 4- and 5-credit students), the brief written critiques of other problems, and class participation. Class participation will include all your in-class work, including your work in the problem simulations, and will also include your participation in discussions conducted in the discussion forums on the course and law office TWEN pages.
For 3-credit students, the writing assignments for the Professor Ito Problem will constitute 70% of the grade, the critiques 10%, and class participation 20%. For 4-credit students, the Professor Ito Problem writing assignments will constitute 50% of the grade, the other problem writing assignment 25%, the critiques 5%, and class participation 20%. For 5-credit students, the Professor Ito Problem writing assignments will constitute 40% of the grade, the second problem writing assignment 20%, the third problem writing
assignment 20%, the critiques 5%, and class participation 15%. (These assignments and percentages may be subject to some small adjustments depending on my final preparations for the problems.)
It is critical that you be regularly in attendance and prepared, and that you meet deadlines throughout the course. Failure to do so, except when there is compelling justification, will have a substantial negative effect on your grades and could result in your exclusion from the course. Because of the collaborative and interdependent nature of this course, the law school’s regular attendance policy does not apply. Instead, you are permitted only one unexcused absence, and that absence may not be on a date when you are scheduled to play a role in a simulation, to lead a law office meeting, or to participate in a feedback session for a problem in which you had a writing assignment or a simulation role.
You are about to participate in a live simulation. As you will see, simulations are valuable teaching and learning tools. To get the most benefit from this exercise, you will want to be familiar with the character and purposes of simulations.
Here is a brief description:
A simulation resembles something but is not the thing itself. In law school, a simulation resembles the activity of lawyers; the essential attribute of a simulation is that students do something like what lawyers do. More specifically, in a simulation, students are presented with a situation that might confront a practicing lawyer. In dealing with the situation, they perform in role and attend to the goals and interests of their clients; they are result-oriented.
(J. Feinman, “Simulations: An Introduction,” 45 J. of Legal Education 469, 469-470 (1995)).
Here also are three important rules for you to follow as you participate in simulation exercises.
1. In your mind, consciously place yourself into the role that you have been assigned, and stay strictly in your role throughout the exercise.
2. If there are observers in the room, ignore them. Act as though they do not exist. (The corollary for observers is to act as though you are not there; do not react to, distract, or otherwise interact with the simulation participants.)
3. Willingly suspend your disbelief. (This is an accepted technique of literary analysis, i.e., “willing suspension of disbelief.”) For instance, you will know that you are not in a “real” conference room or law office when you do a simulation; you will know that the institution you are representing or challenging may not be a “real” institution; you will know that the students you work with or oppose are not “real” attorneys and “real” officers of the institution; and you will know that the client, or witness, or university official that you are facing in the simulation may not have the actual name and title that they represent to you. But for the sake of the simulation, you can and do put aside, or “suspend,” all such “disbeliefs.”
The Legal Problem-Solving Process
Here are some basic steps for lawyers to take in addressing and resolving a client’s higher education law problem. Depending on the situation and the lawyer’s personal problem-solving style, these steps may sometimes be taken in a somewhat different order. Moreover, some of the steps may be repeated and reconsidered at a later stage of the problem-solving process, or may be a continuing consideration throughout all remaining steps of the process. For instance, a lawyer may reassess the facts or seek additional facts (step #2 below) at some later stage, or may continually reassess the facts as he/she proceeds through the other steps.
1. Identify the client and do an initial assessment of the client’s interests regarding the problem being presented to you.
2. Collect and marshal the available facts, and make an initial assessment of other information you will need to obtain.
3. Based on your initial consideration of the client and the facts, place the problem in the appropriate sector of the “education law universe.” (See Student Edition, pp. 1-2..)
4. Recall the governance structure applicable to the sector of the education law universe in which you are working. Then determine what person(s) or entity(ies) within that structure has taken, or proposes to take, the action that concerns your client. Also consider who, or who else, within the structure – both internally and externally – may have authority over the action that your client is complaining about. (See Student Edition, pp. 2-3 and Section 3.1.1.)
5. Based on your placement of the problem within the education law universe, determine what specific internal and external sources of law may apply to the problem. (See Student Edition, pp. 3-4.)
6. Using the sources of law you have identified, frame the legal issues that the problem presents. To help with this framing, consider the “parties” that are or may be in dispute and the legal relationship between them. (See Student Edition, pp. 4-6.) Make sure the issues are framed as legal issues, not policy issues. But do consider any pertinent policy issues that may be of concern to the client, and seek to understand the relationship between the legal issues and the policy issues. (See Student Edition, p. 6.)
7. Consider how you could best serve your client’s interests and what lawyering role you would assume to doing so. In particular, determine whether you would better serve your client as a counselor or as an advocate, and whether you should act in a “treatment law” mode, a “preventive law” mode, or some combination of the two. (See Student Edition, Section 2.1.7.)
8. Determine what dispute resolution mechanisms and forums would be available to help resolve the problem (see Student Edition, Sections 2.1.4, 2.2.1, & 2.3) and what lawyering competencies you would use in order to make best use of these mechanisms and forums.
9. Based on all of the above steps, design an overall plan for resolving your client’s problem. Include strategic and tactical considerations. Be creative. Be moral. Be prepared to be persuasive with other parties and decision-makers who may play a part in resolving the dispute. For an outline of steps for lawyers to take in accomplishing these objectives, see Roy Stuckey, “Persuasion from A to P: Back to Basics,” 30 Santa Clara L. Rev. 677, 684-86 (1990).