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1.4.3.1 Institutional rules and regulations. The rules and regulations promulgated by individual institutions are also a source of postsecondary education law. These rules and regulations are subject to all the external sources of law listed in Section 1.4.2 and must be consistent with all the legal requirements of those sources that apply to the particular institution and to the subject matter of the internal rule or regulation. Courts may consider some institutional rules and regulations to be part of the faculty-institution contract or the student-institution contract (see Section 1.4.3.2), in which case these rules and regulations are enforceable by contract actions in the courts. Some rules and regulations of public institutions may also be legally enforceable as administrative regulations of a government agency (see Section 1.4.2.3). Even where such rules are not legally enforceable by courts or outside agencies, a postsecondary institution will likely want to follow and enforce them internally, to achieve fairness and consistency in its dealings with the campus community.

Institutions may establish adjudicatory bodies with authority to interpret and enforce institutional rules and regulations (see, for example, Section 9.1). When such decision-making bodies operate within the scope of their authority under institutional rules and regulations, their decisions also become part of the governing law in the institution; and courts may regard these decisions as part of the faculty-institution or student-institution contract, at least in the sense that they become part of the applicable custom and usage (see Section 1.4.3.3) in the institution.

1.4.3.2 Institutional contracts. Postsecondary institutions have contractual relationships of various kinds with faculties (see Section 5.2), staff (see Section 4.2), students (see Section 7.1.3), government agencies (see Section 11.4.1), and outside parties such as construction firms, suppliers, research sponsors from private industry, and other institutions. These contracts create binding legal arrangements between the contracting parties, enforceable by either party in case of the other's breach. In this sense a contract is a source of law governing a particular subject matter and relationship. When a question arises concerning a subject matter or relationship covered by a contract, the first legal source to consult is usually the contract's terms.

Contracts, especially with faculty members and students, may incorporate some institutional rules and regulations (see Section 1.4.3.1), so that these become part of the contract terms. Contracts are interpreted and enforced according to the common law of contracts (Section 1.4.2.4) and any applicable statute or administrative rule or regulation (Sections 1.4.2.2 and 1.4.2.3). Contracts may also be interpreted with reference to academic custom and usage.

1.4.3.3 Academic custom and usage. By far the most amorphous source of postsecondary education law, academic custom and usage comprises the particular established practices and understandings within particular institutions. Academic custom and usage differs from institutional rules and regulations (Section 1.4.3.1) in that custom and usage is not necessarily a written source of law and, even if written, is far more informal; custom and usage may be found, for instance, in policy statements from speeches, internal memoranda, and other such documentation within the institution.

This source of postsecondary education law, sometimes called “campus common law,” is important in particular institutions because it helps define what the various members of the academic community expect of one another as well as of the institution itself. Whenever the institution has internal decision-making processes, such as a faculty grievance process or a student disciplinary procedure, campus common law can be an important guide for decision making. In this sense, campus common law does not displace formal institutional rules and regulations but supplements them, helping the decision maker and the parties in situations where rules and regulations are ambiguous or do not exist for the particular point at issue.

Academic custom and usage is also important in another, and broader, sense: it can supplement contractual understandings between the institution and its faculty and between the institution and its students. Whenever the terms of such a contractual relationship are unclear, courts may look to academic custom and usage in order to interpret the terms of the contract. In Perry v. Sindermann, 408 U.S. 593 (1972), the U.S. Supreme Court placed its imprimatur on this concept of academic custom and usage when it analyzed a professor's claim that he was entitled to tenure at Odessa College:

The law of contracts in most, if not all, jurisdictions long has employed a process by which agreements, though not formalized in writing, may be “implied” (3 Corbin on Contracts, §§ 561–672A). Explicit contractual provisions may be supplemented by other agreements implied from “the promisor's words and conduct in the light of the surrounding circumstances” (§ 562). And “the meaning of [the promisor's] words and acts is found by relating them to the usage of the past” (§ 562).

A teacher, like the respondent, who has held his position for a number of years might be able to show from the circumstances of this service—and from other relevant facts—that he has a legitimate claim of entitlement to job tenure. Just as this Court has found there to be a “common law of a particular industry or of a particular plant” that may supplement a collective bargaining agreement (United Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 579…(1960)), so there may be an unwritten “common law” in a particular university that certain employees shall have the equivalent of tenure [408 U.S. at 602].

Sindermann was a constitutional due process case, and academic custom and usage was relevant to determining whether the professor had a property interest in continued employment that would entitle him to a hearing prior to nonrenewal (see Section 5.7.2). Academic custom and usage is also important in contract cases in which courts, arbitrators, or grievance committees must interpret provisions of the faculty-institution contract (see Sections 5.2 and 5.3) or the student-institution contract (see Section 7.1.3). In Strank v. Mercy Hospital of Johnstown, 117 A.2d 697 (Pa. 1955), a student nurse who had been dismissed from nursing school sought to require the school to award her transfer credits for the two years' work she had successfully completed. The student alleged that she had “oral arrangements with the school at the time she entered, later confirmed in part by writing and carried out by both parties for a period of two years,…[and] that these arrangements and understandings imposed upon defendant the legal duty to give her proper credits for work completed.” When the school argued that the court had no jurisdiction over such a claim, the court responded: “[Courts] have jurisdiction…for the enforcement of obligations whether arising under express contracts, written or oral, or implied contracts, including those in which a duty may have resulted from long recognized and established customs and usages, as in this case, perhaps, between an educational institution and its students” (117 A.2d at 698). Similarly, in Krotkoff v. Goucher College, 585 F.2d 675 (4th Cir. 1978), the court rejected another professor's claim that “national” academic custom and usage protected her from termination of tenure due to financial exigency. The court discussed in its opinion that the professor failed to establish a local understanding of tenure at the college that precluded dismissal of tenured faculty due to financial exigency.

Asserting that academic custom and usage is relevant to a faculty member's contract claim may help the faculty member survive a motion for summary judgment. In Bason v. American University, 414 A.2d 522 (D.C. 1980), a law professor denied tenure asserted that he had a contractual right to be informed of his progress toward tenure, which had not occurred. In this case, the court reversed a trial court's summary judgment ruling for the employer, stating that “resolution of the matter involves not only a consideration of the Faculty Manual, but of the university's ‘customs and practices.’ … The existence of an issue of custom and practice also precludes summary judgment” (414 A.2d at 525). The same court stated, in Howard University v. Best, 547 A.2d 144 (D.C. 1988), “[i]n order for a custom and practice to be binding on the parties to a transaction, it must be proved that the custom is definite, uniform, and well known, and it must be established by ‘clear and satisfactory evidence.’” Plaintiffs are rarely successful, however, in attempting to argue that academic custom and usage supplants written institutional rules or a reasonable or consistent interpretation of institutional policies (see, for example, Brown v. George Washington University, 802 A.2d 382 (D.C. App. 2002)).

The criteria needed to establish academic custom and practice can also apply to and constrain institutional action. In Howard University v. Roberts-Williamson, 37 A.3d 896 (D.C. 2012), a university argued that while it had not provided formal biennial reviews to a faculty member as specified in the faculty handbook, the faculty member had received sufficient feedback regarding her performance. The court rejected this argument, stating that the university failed to establish by “clear and satisfactory” evidence a custom or practice of “accepting something short of an actual biennial evaluation” as called for in the faculty handbook (37 A.3d at 908).

Custom and usage may also sometimes apply to outsiders who are not members of the campus community. A federal appellate court cited a university's unwritten custom of barring all “uninvited” individuals from speaking on the “library lawn” in Gilles v. Blanchard, 477 F.3d 466 (7th Cir. 2007). In the case, an itinerant preacher, Gilles, had attempted to preach on the library lawn of the Vincennes University, a public university. The university cited its policy of requiring that anyone speaking on campus property be invited by a faculty member or student; Gilles had not been invited to speak. Rejecting Gilles's First Amendment claim, the court noted that the university's custom and practice was content-neutral and thus not a violation of Gilles's right to free speech.

1.4.4 The role of case law. Every year, the state and federal courts reach decisions in hundreds of cases involving postsecondary education. Opinions are issued and published for many of these decisions. Many more decisions are reached and opinions rendered each year in cases that do not involve postsecondary education but do elucidate important established legal principles with potential application to postsecondary education. Judicial opinions (case law) may interpret federal, state, or local statutes. They may also interpret the rules and regulations of administrative agencies. Therefore, in order to understand the meaning of statutes, rules, and regulations, one must understand the case law that has construed them. Judicial opinions may also interpret federal or state constitutional provisions and may sometimes determine the constitutionality of particular statutes or rules and regulations. A statute, rule, or regulation that is found to be unconstitutional because it conflicts with a particular provision of the federal or a state constitution is void and no longer enforceable by the courts. In addition to these functions, judicial opinions also frequently develop and apply the common law of the jurisdiction in which the court sits. And judicial opinions may interpret postsecondary institutions' “internal law” (Section 1.4.3) and measure its validity against the backdrop of the constitutional provisions, statutes, and regulations (the “external law”; Section 1.4.2) that binds institutions.

Besides their opinions in postsecondary education cases, courts issue numerous opinions each year in cases concerning elementary and secondary education (see, for example, the Wood v. Strickland case in Section 4.4.4. and the Goss v. Lopez case in Section 9.3.2). Insights and principles from these cases are often transferable to postsecondary education. But elementary or secondary precedents cannot be applied routinely or uncritically to postsecondary education. Differences in the structures, missions, and clienteles of these levels of education may make precedents from one level inapplicable to the other or may require that the precedent's application be modified to account for the differences. (For an example of a court's application of precedent developed in the secondary education context to a higher education issue, see the discussion of Hosty v. Carter in Section 10.3.3.)

A court's decision has the effect of binding precedent only within its own jurisdiction. Thus, at the state level, a particular decision may be binding either on the entire state or only on a subdivision of the state, depending on the court's jurisdiction. At the federal level, decisions by district courts and appellate courts are binding within a particular district or region of the country, while decisions of the U.S. Supreme Court are binding precedent throughout the country. Since the Supreme Court's decisions are the supreme law of the land, they bind all lower federal courts as well as all state courts, even the highest court of the state.

1.4.5 Researching case law. The important opinions of state and federal courts are published periodically and collected in bound volumes that are available in most law libraries. For state court decisions, besides each state's official reports, there is the National Reporter System, a series of regional case reports comprising the (1) Atlantic Reporter (cited A., A.2d, or A.3d), (2) North Eastern Reporter (N.E., N.E.2d, or N.E.3d), (3) North Western Reporter (N.W. or N.W.2d), (4) Pacific Reporter (P., P.2d, or P.3d), (5) South Eastern Reporter (S.E. or S.E.2d), (6) South Western Reporter (S.W., S.W.2d, or S.W.3d), and (7) Southern Reporter (So., So.2d, or So.3d). Each regional reporter publishes opinions of the courts in that particular region. There are also special reporters in the National Reporter System for the states of New York (New York Supplement, cited N.Y.S.) and California (California Reporter, cited Cal. Rptr.).

In the federal system, U.S. Supreme Court opinions are published in the United States Supreme Court Reports (U.S.), the official reporter, as well as in two unofficial reporters, the Supreme Court Reporter (S. Ct.) and the United States Supreme Court Reports—Lawyers' Edition (L. Ed. or L. Ed. 2d). Supreme Court opinions are also available, shortly after issuance, in the loose-leaf format of United States Law Week (U.S.L.W.), which also contains digests of other recent selected opinions from federal and state courts. Opinions of the U.S. Courts of Appeals are published in the Federal Reporter (F., F.2d, or F.3d). U.S. District Court opinions are published in the Federal Supplement (F. Supp., F. Supp. 2d, or F. Supp. 3d) or, for decisions regarding federal rules of judicial procedure, in Federal Rules Decisions (F.R.D.). All of these sources, as well as those for state court decisions, are online in both the Westlaw and LexisNexis legal research databases. Opinions are also available online, in most instances, from the courts themselves. For example, opinions of the U.S. Supreme Court are available from the Court's website at https://www.supremecourt.gov/opinions/slipopinion/18. There are also free websites that provide access to court opinions. Three good examples are Cornell Law School's Legal Information Institute (https://www.law.cornell.edu), Justia (https://law.justia.com), and Google Scholar (https://scholar.google.com). The Legal Information Institute also operates Oyez (https://www.oyez.org), which has audio recordings of U.S. Supreme Court oral arguments.