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2.1.1 Overview. Postsecondary institutions and their agents—the officers, administrators, faculty members, staff members, and others through whom the institution acts—may encounter various forms of legal liability. The type and extent of liability depend on the source of the legal responsibility that the institution or its agents have failed to meet, and also on the power of the tribunal that determines whether the institution or its agents have violated some legal responsibility.

The three sources of law that typically create legal liabilities are the federal Constitution and state constitutions, statutes and regulations (at federal, state, and local levels), and state common law (see Section 1.4.2.4). Constitutions typically govern actions by public institutions and their agents, although state constitutions may also be applied, under certain circumstances, to the conduct of private institutions and individuals. Statutes typically address who is subject to the law, the conduct prohibited or required by the law, and the consequences of failing to comply with the law. For example, employment discrimination laws specify what entities (employers, labor unions, employment agencies) are subject to the law's requirements, specify the types of discrimination that are prohibited by the law (race discrimination, disability discrimination, and so on), and address the penalties for violating the law (back pay, injunctions, and so on). For many statutes, administrative agency regulations elaborate on the actions required or prohibited by the statute, the criteria for determining that an institution or individual has violated the statute or regulation, and the methods of enforcement. Finally, the common law, particularly contract and tort law, has developed standards of conduct (for example, tort law's concept of legal duty and its various “reasonable person” standards) that, if violated, lead to legal liability.

2.1.2 Types of liability. Liability may be institutional (corporate) liability on the one hand or personal (individual) liability on the other. Depending on who is sued, both types of liability may be involved in the same case. Constitutional claims brought by faculty, students, or others against public institutions may create institutional liability (unless the institution enjoys sovereign immunity, as discussed in Section 3.4) as well as individual liability, if individuals are also sued and their acts constitute “state action” or action under “color of law” (see Section 4.4.4). Statutory claims often (especially under federal nondiscrimination statutes) create only institutional liability but sometimes also provide for individual liability. Contract claims usually involve institutional liability but occasionally may involve individual liability as well. Tort claims frequently involve both institutional and individual liability, except for situations in which the institution enjoys sovereign or charitable immunity. Institutional liability for tort, contract, and constitutional claims is discussed in Sections 3.2, 3.3, and 3.4; personal liability for these claims is discussed in Section 4.4.

2.1.3 Agency law. Since postsecondary institutions act through their officers, employees, and other agents, the law of agency plays an important role in assessing liability, particularly in the area of tort law. Agency law provides that the employer (called the “principal” or the “master”) must assume legal responsibility for the actions of its employees (called “agents” or “servants”) and other “agents” under certain circumstances. Under the general rules of the law of agency, as applied to tort claims, the master may be liable for torts committed by its employees while they are acting in the scope of their employment. But the employer will not be liable for its employees' torts if they are acting outside the scope of their employment, unless one of four exceptions can be proven: for example, (1) if the employer intended that the tort or its consequences be committed; (2) if the master was negligent or reckless; (3) if the master had delegated a duty to the employee that was not delegable and the tort was committed as a result; or (4) if the employee relied on “apparent authority” by purporting to act or speak on behalf of the master (American Law Institute, Restatement (Third) of Agency §§ 7.03–7.08 (2006)). Generally speaking, it is difficult for an employer to avoid liability for the unlawful acts of an employee unless the allegedly unlawful act is taken to further a personal interest of the employee or is so distant from the employee's work-related responsibilities as to suggest that holding the employer legally responsible for the act would be unjust.

Students may on occasion be regarded as agents of the institution, even if they are not employees. See, for example, Fils-Aime v. Ryder TRS, Inc. and Cornell University, 837 N.Y.S.2d 199 (N.Y. App. Div. 2007). The institution's liability for the acts of its agents is discussed in Section 3.1 of this book and in various places in Sections 3.2 through 3.4. Sections 4.5 and 8.5 discuss institutional liability for agents' acts under federal civil rights statutes.

2.1.4 Enforcement mechanisms. Postsecondary institutions may incur legal liability in a variety of proceedings. Students, employees, or others who believe that the institution has wronged them may often be able to sue the institution in court. Cases are usually (but not always) tried before a jury when the plaintiff claims monetary damages but are tried before a judge when the plaintiff seeks only equitable remedies such as an injunction.

Some federal statutes permit an individual to sue for alleged statutory violations in federal court, but if the statute does not contain explicit language authorizing a private cause of action, an individual may be limited to seeking enforcement by a federal agency. (See, for example, the discussion in Section 7.8.1 concerning private lawsuits under the Family Educational Rights and Privacy Act [FERPA].)

Various federal laws are enforced through administrative mechanisms established by the administrative agency (or agencies) responsible for that law. For example, the U.S. Education Department enforces nondiscrimination requirements under federal spending statutes such as Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act of 1973 (see Sections 11.5.2–11.5.4 of this book). Similarly, the federal Occupational Safety and Health Administration (OSHA) enforces the Occupational Safety and Health Act, and the U.S. Department of Labor enforces the Fair Labor Standards Act and the Family and Medical Leave Act. Administrative enforcement may involve a compliance review of institutional programs, facilities, and records; negotiations and conciliation agreements; hearings before an administrative law judge; and appeals through the agency prior to resort to the courts. Many states have their own counterparts to the federal administrative agency enforcement system for similar state laws.

Several federal statutes provide for lawsuits to be brought by either an individual or a federal agency. In other cases, a federal agency may bring constitutional claims on behalf of one plaintiff or a class of plaintiffs. The U.S. Department of Justice, on occasion, acts as a plaintiff in civil cases against postsecondary institutions. For example, the Department of Justice sued Virginia Military Institute (VMI) under the U.S. Constitution's Fourteenth Amendment for VMI's refusal to admit women (see Section 7.2.4.2). It also sued the state of Mississippi under Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment, seeking to desegregate the state's dual system of higher education (see United States v. Fordice, discussed in Section 7.2.4.1). The Justice Department acts as a plaintiff in antitrust cases as well (see, for example, United States v. Brown University, 5 F.3d 658 (3d Cir. 1993)). The Justice Department also plays a role in cases brought under the False Claims Act. Other federal or state agencies may also sue postsecondary institutions in court. Such litigation may follow years of enforcement actions by the agency and may result in fines or court orders to comply with the law.

Some institutions are turning to alternative methods of resolving disputes in order to avoid the time, expense, and public nature of litigation. Section 2.3 discusses the use of mediation, arbitration, and other methods of resolving disputes on campus.

2.1.5 Remedies for legal violations. The source of legal responsibility determines the type of remedy that may be ordered if an institution or its agent is judged liable. For example, violations of statutes and administrative agency regulations may lead to the termination of federal or state funding for institutional programs, debarment from future contracts or grants from the government agency, audit exceptions, or fines. Violations of statutes (and sometimes regulations) may also lead to an order that money damages be paid to the prevailing party. Equitable remedies may also be ordered, such as reinstatement of a terminated employee, cessation of the practice judged to be unlawful, or an injunction requiring the institution to perform particular acts (such as abating an environmental violation). Occasionally, criminal penalties may be imposed. For example, the Occupational Safety and Health Act provides for imprisonment for individuals who willfully violate the act. Criminal penalties may also be imposed for violations of certain computer fraud and crime statutes.

2.1.6 Avoiding legal liability. Legal compliance should be thought of as the minimum that the institution must do and not as the maximum that it should do. Policy considerations may often lead institutional decision makers to do more than the law actually requires (see Section 1.7). The culture of the institution, its mission, the prevailing academic norms and customs, and particular institutional priorities, as well as the law, may help shape the institution's legal and policy responses to potential legal liability. To capture this dynamic, discussions of legal liability throughout this book are interwoven with discussions of policy concerns; administrators and counsel are often encouraged (explicitly and implicitly) to base decisions on this law/policy dynamic. Section 2.4 discusses various strategies for managing the risk of legal liability.

2.1.7 Treatment law and preventive law. Institutions should give serious consideration to the particular functions that counsel will perform and to the relationships that will be fostered between counsel and administrators. Broadly stated, counsel's role is to identify and define actual or potential legal problems and provide options for resolving or preventing them. There are two basic, and different, ways to fulfill this role: through treatment law and through preventive law. To analogize to another profession, the goal of treatment law is to cure legal diseases, while the goal of preventive law is to maintain legal health. Under either approach, counsel will be guided not only by legal considerations and institutional goals and policies but also by the ethical standards of the legal profession that shape the responsibilities of individual practitioners to their clients and the public.

Treatment law is the more traditional of the two practice approaches. It focuses on actual challenges to institutional practices and on affirmative legal steps by the institution to protect its interests when they are threatened. When suit is filed against the institution or litigation is threatened, when a government agency cites the institution for noncompliance with its regulations, when the institution needs formal permission of a government agency to undertake a proposed course of action, when the institution wishes to sue some other party—then treatment law operates. Counsel seeks to resolve the specific legal problem at hand. Treatment law today is indispensable to the functioning of a postsecondary institution, and virtually all institutions have such legal service.

Preventive law, in contrast, focuses on initiatives that the institution can take before actual legal disputes arise. Preventive law involves administrators and counsel in a continual cooperative process of setting the legal and policy parameters within which the institution will operate to forestall or minimize legal disputes. Counsel identifies the legal consequences of proposed actions; pinpoints the range of alternatives for avoiding problems and the legal risks of each alternative; sensitizes administrators and the campus community to legal issues and the importance of recognizing them early; determines the impact of new or proposed laws and regulations, and new court decisions, on institutional operations; and helps devise internal processes that support constructive relationships among members of the campus community. Prior to the 1980s, preventive law was not a general practice of postsecondary institutions. But this approach became increasingly valuable as the presence of law on the campus increased, and acceptance of preventive law within postsecondary education grew substantially. Today, preventive law is as indispensable as treatment law and provides the more constructive overall posture from which to conduct institutional legal affairs.

Institutions using or considering the use of preventive law will need to determine what working arrangements will best ensure that administrators are alert to incipient legal problems and that counsel is involved in institutional decision making at an early stage. In addition, institutions will also need to delineate carefully the respective roles of administrators and counsel in the decision-making process. Once an institution has worked through these considerations, it should be positioned to engage in a continuing course of preventive legal planning. Legal planning is the process by which an institution identifies and assesses particular situations and implements strategies for avoiding or resolving legal risks it is not willing to assume. In addition to legal considerations, legal planning encompasses ethical, administrative, and financial considerations, as well as the institution's policy preferences and priorities. Sometimes the law may be in tension with institutional policy; legal planners then may seek to devise alternative means for achieving a particular policy objective consistent with the law. Often, however, the law will be consistent with institutional policy; legal planners then may use the law to support and strengthen the institution's policy choices and may, indeed, implement initiatives more extensive than the law would require. Successful legal planning thus depends on a careful sorting out and interrelating of legal and policy issues, which in turn depend upon a teamwork relationship between administrators and counsel.