Читать книгу The Law of Higher Education - William A. Kaplin - Страница 50

3.1.1 Overview. Trustees, officers, and administrators of postsecondary institutions—public or private—may take only those actions and make only those decisions that they have authority to take or make. Acting or deciding without authority to do so can have legal consequences, both for the responsible individual and for the institution. It is thus critical, from a legal standpoint, for trustees, officers, and other administrators to understand and adhere to the scope and limits of their authority and that of other institutional functionaries with whom they deal. Such sensitivity to questions of authority will also normally be good administrative practice, since it can contribute order and structure to institutional governance and make the internal governance system more understandable, accessible, and accountable to those who deal with it.

Authority generally originates from some fundamental legal source that establishes the institution as a legal entity. For public institutions, the source is usually a state constitution or state authorizing legislation; for private institutions, it is usually articles of incorporation, sometimes in combination with some form of state license. These sources, though fundamental, are only the starting point for legal analysis of authority questions. To be fully understood and utilized, an institution's authority must be construed and implemented in light of all the sources of law described in Section 1.4. For public institutions, state administrative law (administrative procedure acts and similar statutes, plus court decisions) and agency law (court decisions) provide the backdrop against which authority is construed and implemented; for private institutions, state corporation law or trust law (statutes and court decisions) plus agency law (court decisions) are the bases. Authority is particularized and dispersed (delegated) to institutional officers, employees, committees and boards, and internal organizations such as a faculty senate or a student government. The vehicles for such delegations are usually the governing board bylaws, institutional rules and regulations, the institution's employment contracts, and, for public institutions, the administrative regulations of state education boards or agencies. Authority may also be delegated to outside entities such as an athletic booster club, a university research foundation, or a private business performing services for the institution. Vehicles for such delegations include separate corporate charters for captive organizations, memoranda of understanding with affiliated entities, and service contracts (for contracting out of services). Gaps in internal delegations may be filled by resort to the institution's customs and usages, and vagueness or ambiguity may be clarified in the same way. For some external delegations, the custom and usage of the business or trade involved may be used in such circumstances rather than that of the institution.

There are several generic types of authority. As explained in Brown v. Wichita State University (Section 3.3), authority may be express, implied, or apparent. “Express authority” is that which is found within the plain meaning of a written grant of authority. “Implied authority” is that which is necessary or appropriate for exercising express authority and can therefore be inferred from the express authority. “Apparent authority” is not actual authority at all; the term is used to describe the situation where someone acting for the institution induces a belief in other persons that authority exists when in fact it does not. Administrators should avoid this appearance of authority and should not rely on apparent authority as a basis for acting, because the institution may be held liable, under the doctrine of estoppel, for resultant harm to persons who rely to their detriment on an appearance of authority. When an institutional officer or employee does mistakenly act without authority, the action can sometimes be corrected through “ratification” by the board of trustees or other officer or employee who does have authority to undertake the act in question.

One other type of authority is occasionally referred to in the postsecondary context: inherent authority. In Morris v. Nowotny, 323 S.W.2d 301 (Tex. 1959), for instance, the court remarked that the statutes establishing the University of Texas “imply the power, and, if they do not so imply, then that power is inherent in University officials to maintain proper order and decorum on the premises of the University.” In Esteban v. Central Missouri State College, 415 F.2d 1077 (8th Cir. 1969), the court held that the college had “inherent authority to maintain order and to discipline students.” And in Waliga v. Board of Trustees of Kent State University, 488 N.E.2d 850 (Ohio 1986), the court found inherent authority in the university's trustees to revoke an academic degree that had been obtained by fraud. The inherent authority concept is often loosely used in judicial opinions and has no clear definition. Sometimes courts appear to apply the phrase to what is really a very broad construction of the institution's implied powers. In Goldberg v. Regents of the University of California, 57 Cal. Rptr. 463 (Cal. Ct. App. 1967), the court held that broad disciplinary authority over students was implicit in the state constitution's grant of power to the university, but then the court called that authority “inherent.” At other times the inherent authority concept is more clearly distinguished from implied authority; inherent authority then is said to exist not because of any written words but because it would not be sensible, as measured by the norms of postsecondary education, for an institution to be without authority over the particular matter at issue. In all, inherent authority is an elusive concept of uncertain stature and questionable value, and it is a slender reed to rely on to justify actions and decisions. If administrators need broader authority, they should, with counsel's help, seek to expand their express authority or to justify a broader construction of their implied authority.

The law is not clear on how broadly or narrowly authority should be construed in the postsecondary context. To some extent, the answer will vary from state to state and, within a state, may depend on whether the institution is established by the state constitution, by state statutes, or by articles of incorporation. Although authority issues have been addressed in judicial opinions, such as those discussed in Section 3.2 below, the analysis is sometimes cursory. There has been debate among courts and commentators on whether postsecondary institutions should be subject to traditional legal principles for construing authority or whether such principles should be applied in a more flexible, less demanding way that takes into account the unique characteristics of postsecondary education. Given the uncertainty, administrators should rely when possible on express rather than implied or inherent authority and should seek clarity in statements of express authority, in order to avoid leaving authority questions to the vagaries of judicial interpretation. If institutional needs require greater flexibility and generality in statements of authority, administrators should consult legal counsel to determine how much breadth and flexibility the courts of the state would permit in construing the various types of authority.

Miscalculations of the institution's authority, or the authority of particular officers or employees, can have various adverse legal consequences. For public institutions, unauthorized acts may be invalidated by courts or administrative agencies under the ultra vires doctrine in the state's administrative law (a doctrine applied to acts that are beyond the delegated authority of a public body or official). For private institutions, a similar result occasionally can be reached under state corporation law.

When the unauthorized act is a failure to follow institutional regulations and the institution is public, courts will sometimes hold that the act violated procedural due process. In Escobar v. State University of New York/College at Old Westbury, 427 F. Supp. 850 (E.D.N.Y. 1977), a student sought to enjoin the college from suspending him or taking any further disciplinary action against him. The student had been disciplined by the judicial review committee, acting under the college's “Code of Community Conduct.” After the college president learned of the disciplinary action, he rejected it and imposed more severe penalties on the student. The president purported to act under the “Rules of Public Order” adopted by the Board of Trustees of the State University of New York rather than under the college Code. The court found that the president had violated the Rules, and it enjoined enforcement of his decision:

[E]ven if we assume the President had power to belatedly invoke the Rules, it is clear that he did not properly exercise that power, since he did not follow the requirements of the Rules themselves. The charges he made against the plaintiff were included in the same document which set forth the plaintiff's suspension and the terms for his possible readmission. Contrary to the Rules, the President did not convene the Hearing Committee, did not give notice of any hearing, and received no report from the Hearing Committee. There is no authority in either the Rules or the Code for substituting the hearing before the Code's Judicial Review Committee for the one required to be held before the Rules' hearing committee…

Of course, not every deviation from a university's regulations constitutes a deprivation of due process… But where, as here, an offending student has been formally charged under the college's disciplinary code, has been subjected to a hearing, has been officially sentenced, and has commenced compliance with that sentence, it is a denial of due process of law for the chief administrative officer to step in, conduct his own in camera review of the student's record, and impose a different punishment without complying with any of the procedures which have been formally established for the college. Here the President simply brushed aside the college's formal regulations and procedures and, without specific authority, imposed a punishment of greater severity than determined by the hearing panel, a result directly contrary to the Code's appeal provisions [427 F. Supp. at 858].

For both public and private institutions, an unauthorized act violating institutional regulations may also be invalidated as a breach of an express or implied contract with students or the faculty. Lyons v. Salve Regina College, 422 F. Supp. 1354 (D.R.I. 1976), reversed, 565 F.2d 200 (1st Cir. 1977), involved a student who had received an F grade in a required nursing course because she had been absent from several classes and clinical sessions. After the student appealed the grade under the college's published “Grade Appeal Process,” the grade appeal committee voted that the student receive an Incomplete rather than an F. Characterizing the committee's action as a recommendation rather than a final decision, the associate dean overruled the committee, and the student was dismissed from the nursing program.

The parties agreed that the Grade Appeal Process was part of the terms of a contract between them. Though the grade appeal committee's determination was termed a “recommendation” in the college's publications, the lower court found that, as the parties understood the process, the recommendation was to be binding on the associate dean. The associate dean's overruling of the committee was therefore unauthorized and constituted a breach of contract. The lower court ordered the college to change the student's grade to an Incomplete and reinstate her in the nursing program. The appellate court reversed but did not disavow the contract theory of authority. Instead, it found that the committee's determination was not intended to be binding on the associate dean and that the dean therefore had not exceeded his authority in overruling the committee.

Authority questions are also central to a determination of various questions concerning liability for harm to third parties. The institution's tort liability may depend on whether the officer or employee committing the tort was acting within the scope of his or her authority. The institution's contract liability may depend on whether the officer or employee entering the contract was authorized to do so. And, under the estoppel doctrine, both the institution and the individual may be liable where the institution or individual had apparent authority to act.

3.1.2 Trustee authority. The law regarding the authority of boards of trustees may vary from state to state and, within each state, will vary depending on whether the college is public or private. In public institutions, the authority of trustees (or in some states, regents or visitors or curators) is defined and limited by the state statutes, and sometimes constitutional provisions, that create trustee boards for individual institutions. Such laws generally confer power on the board itself as an entity separate from its individual members. Individual trustees generally have authority to act only on behalf of the board, pursuant to some board bylaw, resolution, or other delegation of authority from the board. Other state laws, such as conflict-of-interest laws or ethics codes, may place obligations on individual board members as well as on the board itself. In private colleges, trustee authority typically emanates from the college's charter or articles of incorporation, but state regulatory or licensing laws may limit or dictate trustee action under certain circumstances.