Читать книгу The Law of Higher Education - William A. Kaplin - Страница 40

There is an overarching distinction between law and policy, and thus between legal issues and policy issues, that informs the work of administrators and policy makers in higher education, as well as the work of lawyers.¹² In brief, legal issues are stated and analyzed using the norms and principles of the legal system, resulting in conclusions and advice on what the law requires or permits in a given circumstance. Policy issues, in comparison, are stated and analyzed using norms and principles of administration and management, the social sciences (including the psychology of teaching and learning), the physical sciences (especially the health sciences), ethics, and other relevant disciplines; the resulting conclusions and advice focus on the best policy options available in a particular circumstance. Or, to put it another way, law focuses primarily on the legality of a particular course of action, while policy focuses primarily on the efficacy of a particular course of action. Legality is determined using the various sources of law set out in Section 1.4 of this book; efficacy is determined by using sources drawn from the various disciplines just mentioned. The work of ascertaining legality is primarily for the attorneys, while the work of ascertaining efficacy is primarily for the policy makers and administrators.

Just as legal issues may arise from sources both internal and external to the institution (see Section 1.4), policy issues may arise, and policy may be made, both within and outside the institution. Internally, the educators and administrators, including the trustees or regents, make policy decisions that create what we may think of as “institutional policy” or “internal policy.” Externally, legislatures, executive branch officials, and administrative agencies make policy decisions that create what we may think of as “public policy” or “external policy.” In either case, policy must be made and policy issues must be resolved within the constraints of the law.

It is critically important for institutional administrators and counsel to focus on this vital interrelationship between law and policy whenever they are addressing particular problems, reviewing existing institutional policies, or creating new policies. In these settings, with most problems and policies, the two foundational questions to ask are, “What are the institutional policy or public policy issues presented?” and “What are the legal issues presented?” The two sets of issues often overlap and intertwine. Administrators and counsel may study both sets of issues; neither area is reserved exclusively for the cognitive processes of one profession to the exclusion of the other. Yet lawyers may appropriately think about and react to legal issues differently than administrators do; and administrators may appropriately think about and react to policy issues differently than do attorneys. These matters of role and expertise are central to the process of problem solving as well as the process of policy making, in particular for internal policy. While policy aspects of a task are more the bailiwick of the administrator and the legal aspects more the bailiwick of the lawyer, the professional expertise of each comes together in the policy-making process. In this sense, policy making is a joint project, a team effort. The policy choices suggested by the administrators may implicate legal issues, and different policy choices may implicate different legal issues; legal requirements, in turn, will affect the viability of various policy choices.¹³

The administrators' and attorneys' roles in policy making can be described and differentiated in the following way. Administrators identify actual and potential problems that are interfering or may interfere with the furtherance of institutional goals or the accomplishment of the institutional mission, or that are creating or may create threats to the health or safety of the campus community; they identify the causes of these problems; they identify other contributing factors pertinent to understanding each problem and its scope; they assess the likelihood and gravity of the risks that these problems create for the institution; they generate options for resolving the identified problems; and they accommodate, balance, and prioritize the interests of the various constituencies that would be affected by the various options proposed. In addition, administrators identify opportunities and challenges that may entail new policy-making initiatives; assess compliance with current institutional policies and identify needs for change; and assess the efficacy of existing policies (How well do they work?) and of proposed policies (How well will they work?). Attorneys, in contrast:

 Identify existing and potential problems that create, or may create, exposure to legal risk for the institution or that may raise legal compliance issues

 Analyze the legal aspects of these problems using the applicable sources of law (Section 1.4)

 Generate legally sound options for resolving these problems and present them to the responsible administrators

 Assess the legal risk (if any) to which the institution would be exposed (see Section 2.4) under policy options that the policy makers have proposed either in response to the attorneys' advice or on their own initiative

 Participate in—and often take the lead in—drafting new policies and revising existing policies

 Suggest legally sound procedures for implementing and enforcing the policy choices of the policy makers

 Review existing institutional policies to ascertain whether they are in compliance with applicable legal requirements and whether there are any conflicts between or among existing policies

 Make suggestions for enhancing the legal soundness of existing policies and reducing or eliminating any risk of legal liability that they may pose

 Identify other legal consequences or by-products of particular policy choices (for example, that a choice may invite a governmental investigation, subject the institution to some new governmental regulatory regime, expose institutional employees to potential liability, or necessitate changes in the institution's relationships with its contractors).

Still other connections between law and policy are important for administrators and attorneys, as well as faculty and student leaders, to understand. One of the most important points about the relationship between the two, concerning which there is a growing consensus, is that policy should transcend law. This does not mean that policy should trump law but rather that policy is more than legal compliance, and the law leaves considerable room for policy making that is not dictated by legal considerations. Legal considerations, therefore, generally should not drive policy making, and policy making generally should not be confined to that which is necessary to fulfill legal requirements. Regarding internal policy, institutions that are serious about their institutional missions and goals will often choose to do more than the law requires. As an example, under Title IX of the Education Amendments of 1972, the courts have created lenient liability standards for institutions with regard to faculty members' harassment of students (see Section 8.5 of this book). An institution will be liable to the victim for money damages only when it had “actual notice” of the faculty harassment and only when its response is so insufficient that it amounts to “deliberate indifference.” It is usually easy to avoid monetary liability under these standards, but doing so would not come close to ensuring the safety and health of students or ensuring that there is no hostile learning environment on campus. Institutions, therefore, would be unwise to limit their policy making regarding sexual harassment to only what the courts require under Title IX.

Policy, moreover, can become law—a particularly important interrelationship between the two. In the external realm of public policy, legislatures customarily write their policy choices into law, as do administrative agencies responsible for implementing legislation. There are also instances where courts have leeway to analyze public policy and make policy choices in the course of deciding cases. Courts may do so, for instance, when considering duties of care under negligence law, when determining whether certain contracts or contract provisions are contrary to public policy, and when making decisions, in various fields of law, based on a general standard of “reasonableness.” In the internal realm of institutional policy, institutions also sometimes write their policy choices into law. They do so primarily by incorporating these choices into the institution's contracts with faculty members; students, administrators, and staff; and agents of the institution. This incorporation may be accomplished either by creating contract language that parallels the language in a particular policy or by “incorporating by reference,” that is, by identifying particular policies by name in the contract and indicating that the policy's terms are to be considered terms of the contract. In such situations, the policy choices become law because they then may be enforced under the common law of contract whenever it can be shown that the institution has breached one or more of the policy's terms.

Finally, regarding the interrelationship between law and policy, it is important to emphasize that good policy should encourage judicial deference or academic deference by the courts in situations when the policy, or a particular application of it, is challenged in court. For internal policy, such deference would be given to the higher educational institution; for external policy, it would be given to the legislature or administrative agency whose policy is being challenged. Courts often defer to particular decisions or judgments of the institution, for example, when they are genuinely based upon the academic expertise of the institution and its faculty (see Section 2.2.2). It is therefore both good policy and good law for institutions to follow suggestions such as those outlined here, relying to the fullest extent feasible upon the academic expertise of administrators and faculty members, so as to maximize the likelihood that institutional policies, on their face and in their application, will be upheld by the courts if these policies are challenged.