ERIC Number: ED026008
Record Type: RIE
Publication Date: 1968
Reference Count: 0
The Private-Public Legal Aspects of Institutions of Higher Education.
Denver Law Journal, v45 n4 p643-48 1968
Until recently, the courts perceived almost no difference in their treatment of public and private schools. Under due process and equal protection clauses of the law, a student's economic investment in his education is protected. The obvious legal concept to invoke to protect economic expectation is contract, so most cases involving student rights are thought about in terms of contract. But the university's traditional role of paternalism and the legal concept that education is a privilege to be taken on terms the school, either public or private, imposed have discouraged interference by the courts. The legal theories by which private institutions' decisions concerning student rights may be subjected to judicial control fall into 2 categories: (1) the concept of state action, by which a private school may be subjected to some of the same minimal constitutional restraints as a public school; and (2) a group of common law theories, by which state courts may subject a private school to legal norms. The real problem is not the development of legal theories but determination of the extent of legal control desirable in particular situations. And the nature of the issues involved gives different judicial perspectives to the state action question. Although there are a variety of legal theories that could be invoked, institutions should develop their own functional rules so they will not have to live with inappropriate ones imposed by a court. (JS)
Descriptors: Discipline Policy, Equal Protection, Higher Education, Laws, Legal Responsibility, State Legislation, Student College Relationship, Students
University of Denver College of Law, 200 West 14th Ave., Denver, Colo. 80204 ($2.50)
Publication Type: N/A
Education Level: N/A
Sponsor: American Council on Education, Washington, DC.; Danforth Foundation, St. Louis, MO.
Authoring Institution: Denver Univ., CO. Coll. of Law.
Note: Paper presented at conference on "Legal Aspects of Student-Institutional Relationships," University of Denver College of Law, Denver, 1968.