Читать книгу The Law of Higher Education - William A. Kaplin - Страница 33

1.3.1 Basic concepts and distinctions. Governance refers to the structures and processes by which higher education institutions and systems are governed in their day-to-day operations as well as their longer-range policy making. Governance encompasses (1) the organizational structures of individual institutions and (in the public sector) of statewide systems of higher education; (2) the delineation and allocation of decision-making authority within these organizational structures; (3) the processes by which decisions are made; and (4) the processes by which, and forums within which, decisions may be challenged.

Higher education governance can be divided into two categories: internal governance and external governance. “Internal governance” refers to the structures and processes by which an institution governs itself. “External governance” refers to the structures and processes by which outside entities (that is, entities external to the institution itself) play a role in the governance of institutional affairs. Internal governance usually involves “internal” sources of law (see Section 1.4.3 of this book); and external governance generally involves “external” sources of law (see Section 1.4.2). In turn, external governance can be further divided into two subcategories: public external governance and private external governance. “Public external governance” refers to the structures and processes by which the federal government (see Section 11.3), state governments (see Section 11.2), and local governments (see Section 11.1) participate in the governance of higher education. “Private external governance” refers to the structures and processes by which private associations and organizations participate in the governance of higher education. Major examples of such external private entities include accrediting agencies (see Section 12.1.2), athletic associations and conferences (see Section 12.1.3), the American Association of University Professors, and other higher education associations. Other examples include national employee unions with “locals” or chapters at individual institutions (see Sections 4.3 and 5.3); outside commercial, research, public service, or other entities with which institutions may affiliate; and public interest and lobbying organizations that support particular causes.

The governance structures and processes for higher education, both internal and external, differ markedly from those for elementary and secondary education. Similarly, the structures and processes for public higher education differ from those for private higher education. These variations between public and private institutions exist in part because they are created in different ways, have different missions, and draw their authority to operate from different sources (see generally Section 3.1), and in part because the federal Constitution's and state constitutions' rights clauses apply directly to public institutions and impose duties on them that these clauses do not impose on private institutions (see generally Section 1.5 below).

Furthermore, the governance structures and processes for private secular institutions differ from those for private religious institutions. These variations exist in part because religious institutions have different origins and sponsorship, and different missions, than private secular institutions, and in part because the federal First Amendment and comparable state constitutional provisions and laws afford religious institutions an extra measure of autonomy from government regulations, beyond that of private secular institutions, and also limit their eligibility to receive government support (see generally Section 1.6 below).

Governance structures and processes provide the legal and administrative framework within which higher education problems and disputes arise. They also provide the framework within which parties seek to resolve problems and disputes (see, for example, Section 2.3) and institutions seek to prevent or curtail problems and disputes by engaging in legal and policy planning (see Section 1.7). In some circumstances, governance structures and processes may themselves create problems or become the focus of disputes. Internal disputes (often turf battles) may erupt between various constituencies within the institution—for example, a dispute over administrators' authority to change student grades given by faculty members or to establish international satellite campuses. External governance disputes may erupt between an institution and an outside entity—for example, a dispute over a state board of education's authority to approve or terminate certain academic programs at a state institution, or a dispute over an athletic association's charges of irregularities in an institution's intercollegiate basketball program. Such disputes may spawn major legal issues about governance structures and processes that are played out in the courts. (See Section 6.2.3 for examples concerning internal governance and Sections 11.2 and 12.1 for examples concerning external governance.) Whether a problem or dispute centers on governance, or governance simply provides the framework, a full appreciation of the problem or dispute and the institution's capacity for addressing it effectively requires a firm grasp of the pertinent governance structures and processes.

Typically, when internal governance is the context, an institution's governing board or officers are pitted against one or more faculty members, staff members, or students; or members of these constituencies are pitted against one another. Chapters 3 through 9 of this book focus primarily on such issues. When external governance is the context, typically a legislature, a government agency or board, a private association or other private organization, or sometimes an affiliated entity or outside contractor is pitted against a higher educational institution (or system) or against officers, faculty members, or students of an institution. Chapters 10 and 11 of this book focus primarily on such issues.

The two categories of internal and external governance often overlap, especially in public institutions, and a problem in one category may often cross over to the other. An internal dispute about sexual harassment of a student by an employee, for instance, may be governed not only by the institution's internal policies on harassment but also by the external nondiscrimination requirements in Title IX of the Education Amendments of 1972 (see Section 8.5). Similarly, such a sexual harassment dispute may be heard and resolved not only through the institution's internal processes (such as a grievance mechanism) but also externally through the state or federal courts, the U.S. Department of Education, or a state civil rights agency. There are many examples of such crossovers throughout this book.

1.3.2 Internal governance. As a keystone of their internal governance systems, colleges and universities create “internal law” (see Section 1.4.3) that delineates the authority of the institution and delegates portions of it to various institutional officers, managers, and directors, to departmental and school faculties, to the student body, and sometimes to captive or affiliated organizations. Equally important, internal law establishes the rights and responsibilities of individual members of the campus community and the processes by which these rights and responsibilities are enforced. Circumscribing this internal law is the “external law” (see Section 1.4.2 below) created by the federal government, state governments, and local governments through their own governance processes. Since the external law takes precedence over internal law when the two are in conflict, institutions' internal law must be framed against the backdrop of applicable external law.

Internal governance structures and processes may differ among institutions depending on their status as public, private secular, or private religious (as indicated in Section 1.3.1), and also depending on their size and the degree programs that they offer. The internal governance of a large research university, for instance, may differ from that of a small liberal arts college, which in turn may differ from that of a community college. Regardless of the type of institution, however, there is substantial commonality among the internal structures of U.S. institutions of higher education. In general, every institution has, at its head, a governing board that is usually called a board of trustees or (for some public institutions) a board of regents. Below this board is a chief executive officer, usually called the president or (for some public institutions) the chancellor. Below the president or chancellor are various other executive officers—for example, a chief business officer, a chief information officer, and a general counsel. In addition, there are typically numerous academic officers, chief of whom is a provost or vice president for academic affairs. Below the provost or vice president are the deans of the various schools, the department chairs, and the academic program directors (for instance, a director of distance learning, a director of internship programs, or a director of academic support programs). There are also managers and compliance officers, such as risk managers, facilities managers, affirmative action officers, and environmental or health and safety officers, and directors of particular functions, such as admissions, financial aid, and alumni affairs. These managers, officers, and directors may serve the entire institution or may serve only a particular school within the institution. In addition to these officers and administrators, there is usually a campus-wide organization that represents the interests of faculty members (such as a faculty senate) and a campus-wide organization that represents the interests of students (such as a student government association). Some institutions also maintain separate staff senates.

In addition to their involvement in a faculty senate or similar organization, faculty members are usually directly involved in the governance of individual departments and schools. Nationwide, faculty participation in governance has long been sufficiently established that internal governance is often referred to as “shared governance” or “shared institutional governance.” In recent times, as many institutions have been reconsidering their governance structures, usually under pressure to attain greater efficiency and cost-effectiveness, the concept and the actual operation of shared governance have become a subject of renewed attention. As institutions have increased their reliance on non-tenure-track faculty, an important issue related to shared governance involves the inclusion or exclusion of these faculty members from governance structures and bodies.

1.3.3 External governance. The states are generally considered to be the primary external “governors” of higher education, at least in terms of legal theory. State governments are governments of general powers that typically have express authority over education built into their state constitutions. They have plenary authority to create, organize, support, and dissolve public higher educational institutions (see Section 11.2.1); and they have general police powers under which they charter and license private higher educational institutions and recognize their authority to grant degrees (see Section 11.2.3). States also authorize out-of-state institutions to offer courses or degree programs online to residents in the state. The states also promulgate state administrative procedure acts, open meetings and open records laws, and ethics codes that guide the operations of most state institutions. In addition, states have fiscal powers (especially taxation powers) and police powers regarding health and safety (including the power to create and enforce criminal law) that they apply to private institutions and that substantially affect their operations. And more generally, state courts establish and enforce the common law of contracts and torts that forms the foundation of the legal relationships between institutions and their faculty members, students, administrators, and staffs. (See Section 1.4.2.4 regarding common law and Section 1.4.4 regarding the role of the courts.)

The federal government, in contrast to the state governments, is a government of limited powers, and its constitutional powers, as enumerated in the federal Constitution, do not include any express power over education. Through other express powers, however, such as its spending power (Section 11.3.1), and through its implied powers, the federal government exercises substantial governance authority over both public and private higher education.³ Under its express powers to raise and spend money, for example, Congress provides various types of federal aid to most public and private institutions in the United States, and under its implied powers Congress establishes conditions on how institutions spend and account for these funds. Also under its implied powers, Congress provides for federal recognition of private accrediting agencies—among the primary external private “governors” of education—whose accreditation judgments federal agencies rely on in determining institutions' eligibility for federal funds (see Section 12.1.2). The federal government also uses its spending power in other ways that directly affect the governance processes of public and private higher educational institutions. Examples include the federally required processes for accommodating students with disabilities (see Section 8.4); for keeping student records (see Section 7.8.1); for achieving racial and ethnic diversity through admissions and financial aid programs (see Sections 7.2.5 and 7.3.4); and for preventing and remedying sex discrimination and sexual harassment (see, for example, Sections 8.5 and 11.5.3).

Under other powers, and pursuing other priorities, the federal government also establishes processes for copyrighting works and patenting inventions of faculty members and others (see, for example, Section 11.3.2.3); for enrolling and monitoring international students (see Section 7.7.3); for resolving employment disputes involving unionized workers in private institutions (see Sections 4.3 and 5.3); and for resolving other employment disputes concerning health and safety, wages and hours, leaves of absence, unemployment compensation, retirement benefits, and discrimination. In all these arenas, federal law is supreme over state and local law, and federal law will preempt state and local law that is incompatible with the federal law.

Furthermore, the federal courts are the primary forum for resolving disputes about the scope of federal powers over education, and for enforcing the federal constitutional rights of faculty members, students, and others (see, for example, Sections 6.1 and 9.4). Thus, federal court judgments upholding federal powers or individuals' constitutional rights serve to alter, channel, and check the governance activities of higher education institutions, especially public institutions, in many important ways.

Local governments, in general, have much less involvement in the governance of higher education than either state governments or the federal government. The most important and pertinent aspect of local governance is the authority to establish, or to exercise control over, community colleges. But this local authority does not exist in all states, since state legislatures and state boards may have primary governance authority in some states. Local governments may also have some effect on institutions' internal governance—and may superimpose their own structures and processes upon institutions—in certain areas such as law enforcement, public health, zoning, and local taxation. But local governments' authority in such areas is usually delegated to it by the states and is thus dependent on, and subject to being preempted by, state law (see Section 11.1.1).

External public governance structures and processes are more varied than those for internal governance—especially with regard to public institutions whose governance depends on the particular law of the state in which the institution is located (see Section 11.2.2). The statewide structures for higher education, public and private, also differ from state to state (see Section 11.2.1). What is common to most states is a state board (such as a state board of higher education) or state officer (such as a commissioner) that is responsible for public higher education statewide. This board or officer may also be responsible for private higher education statewide, or some other board or officer may have that responsibility. If a state has more than one statewide system of higher education, there may also be separate boards for each system (for example, the University of California system and the California State University system). In all of these variations, states are typically much more involved in external governance for public institutions than they are for private institutions.

At the federal level, there are also a variety of structures pertinent to the external governance of higher education, but they tend to encompass all postsecondary institutions, public or private, in much the same way. The most obvious and well known part of the federal structure is the U.S. Department of Education. In addition, there are numerous other cabinet-level departments and administrative agencies that have either spending authority or regulatory authority over higher education. The Department of Homeland Security (DHS), for instance, monitors international students while they are in the country to study (see Section 7.7.4); the Department of Health and Human Services (HHS) administers the Medicare program, which is important to institutions with medical centers; the Department of Labor administers various laws concerning wages, hours, and working conditions; the Occupational Safety and Health Administration (OSHA) administers workplace health and safety laws; several agencies have authority over certain research conducted by colleges and universities; and various other agencies, such as the National Institutes of Health (NIH) and the Department of Defense (DOD), provide research grants to institutions of higher education and grants or fellowships to faculty members and students.

At the local level, there is less public external governance than at the state and federal levels. The primary local structures are community college districts that have the status of local governments and community college boards of trustees that are appointed by or have some particular relationship with a county or city government. In some states, issues may arise concerning the respective authority of the community college board and the county legislative body (see Section 11.1.1). Some local administrative agencies, such as a human relations commission or an agency that issues permits for new construction, will also have influence over certain aspects of governance, as will local police forces.

Private external governance, like public external governance, also varies from institution to institution. Most postsecondary institutions, for example, are within the jurisdiction of several, often many, accrediting agencies. The agencies to which an institution is subject will depend on the region of the country in which the institution is located and the types of academic and professional programs that the institution offers. There are also various athletic conferences to which institutions may belong, depending on the level of competition, the status of athletics within the institution, and the region of the country; and there are several different national athletic associations that may govern an institution's intercollegiate competitions, as well as several different divisions with the primary association, the National Collegiate Athletic Association (NCAA) (see Section 12.1.3). Whether there is an outside sponsoring entity (especially a religious sponsor) with some role in governance will also depend on the particular institution, as will the existence and identity of labor unions that have established bargaining units. The influence that affiliated entities or grant-making foundations may have on institutional governance will also depend on the institution. One relative constant is the American Association of University Professors, which is concerned with all types of degree-granting postsecondary institutions nationwide.