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A Broad Analysis: Legal and Ethical Concerns in Higher Education

Katherine A. Spalding

The College of Education and Allied Professions, Western Carolina University

HESA 630: Legal and Ethical Issues in Higher Education

Dr. Needham Yancey Gulley

February 25, 2021

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A Broad Analysis: Legal and Ethical Concerns in Higher Education

Higher education as a field is not prioritized in the greater context of the United States.

Historical evidence has clarified that higher education (HE) is a privilege and not a right (Wilder,

2013). This paper will discuss landmark legal cases and decisions that have altered the course of

the post-secondary educational experience and professional landscape. For the purposes of this

paper, I operationally define law as: rules and regulations that are a means of “governmental

social control” (Friedman & Hayden, 2017, p. 3). I must also state that the Merriam Webster

definition of ethics is: “rules of behavior based on ideas about what is morally good or bad” as a

reference throughout this paper in an addition; echoing Keenan (2015) who highlights the

importance of the medical field’s reliance on “ethics to promote ethical conduct” (p. 9).

Unlike other related fields (e.g., counseling, law, social work, medical, etc.), practitioners

are not bound by, or required to abide by a universal ethical code to be considered an educator

(Keenan, 2015). It is clear that practitioners must choose to educate themselves on ethical

implications. Further, a practitioner can avoid breaking university policies, State and Federal

laws, resulting in a lack of consequences for unethical methods of practice. This paper will

include an analysis related to the evolution and significance of both legal and ethical concerns

within the context of higher education. In closing, I will discuss the distinct need for a universal

code of ethics for the field of HE.

Law vs. Ethics

Within the greater context of the US, law is everywhere (Friedman & Hayden, 2017).

According to the US Cercus Bureau (2021), approximately 328.2 million different humans with

diverse guiding principles are running around almost everywhere, too. According to Alexander

& Alexander (2017):

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Essentially, the law is based on three main sources: constitutions, statutes, and judicial

opinions (case law including common law). Constitutions, federal and state, are the

primary law giving form and substance to the legal system under which the people

choose to govern themselves… The legislative branch enacts, the judicial branch

interprets, and the executive branch implements and administers the law. (p. 1)

This understanding of the legal system helps us to visualize the umbrella in which everything

(e.g., person, place, or thing) falls under for the purposes of social control (Friedman & Hayden,

2017). Broadly, law and ethics are similar in that they both provide a guide for what is

acceptable vs. unexpectable (e.g., behavior, language, safety, etc.). Additionally, ethics often

protect the individual in which services are being provided for, as well as, protecting the

institution from the individual. Institutions must also concern themselves with the laws that

govern them, and the individual, to do the same.

What differentiates law from ethics, is the matter of fact power the word illegal has, in

comparison to unethical. No matter, punitive consequences exist if you are caught breaking the

law. Sometimes, both unethical behavior and broken law(s) work together to produce similar

punitive results; that being said, if both law and ethics were leveraged based on weight, law

would win. Unethical behavior must align with the breaking of a law or laws to see legal

repercussions. Specifically related to HE, public institutions must very carefully align with the

law, or risk cuts to funding, or closing. In comparison, the worst that can happen to an institution

for acting unethically is the loss of accreditation, but this does not mean the institution is closed

or ceases to educate.

On the individual level, what differentiates law and ethics? A philosophical Venn

Diagram in which values or moral principles do align with State and Federal laws, and which do
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not. Naturally, only the ethical portion of this hypothetical Venn Diagram would vary based on

the individual, related to the comparison of law and ethics; these differences likely result due to

the impacts of both nature and nurture. It is important to remember that the intersectionality of

identities often plays a role when speaking to the amount of support laws do, or do not have for

an individual (i.e., dominant vs. non dominant cultural and identity-based expectations and

values).

Discussion

To demonstrate the connection between the legal system, ethics, and movements

throughout history, this portion of the paper will briefly mention a few, not all, of the landmark

cases in the US that have impacted HE. It is crucial to understand that each of these cases, or

legal issues, were driven by both ethical movements throughout history, and unethical

behavior(s), brought to the courts by individuals and groups of folks who knew that change was

not only necessary, but possible. Additionally, moving through history chronologically requires

an understanding of the historical context that brought these cases to the forefront during the

relevant time frame(s). The first US institution of HE was Harvard, founded in 1963 (Thelin,

2011). During the 1600-1700s, or the colonial colleges, HE was reserved for the white, elite,

male (Thelin, 2011). Moving on to the new national period during the 1800s, interest in HE

began to soar (Thelin, 2011). A few landmark supreme court cases are important to mention

during the 1800s; the first being Marbury v. Madison (1803). The importance of this case comes

from the decision in 1803 that in short, highlights the true purpose of judicial review, which

impacts higher education thereafter. It is also important to note that during the 1800s the Morrill

Act of 1862 and 1890 had a significant impact on many institutions of HE by providing land (i.e.

support) (Our Documents, 2021). This dealt with land grant institutions, and the development of
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specific institutions that focused on agriculture and historically black colleges and universities,

which may not have been matched equally (HBCUs) (Lee & Keys, 2013).

The next group of landmark legal cases that follow along with the progression of history,

that by no means is the end of the fight for equality are in order: Dred Scott v. Sandford (1857),

Plessy v. Ferguson (1896), and later on in the 1900s, Brown v. Board of Education (1954). Each

of these cases addressed the problems that we are still working to bring to the forefront of society

in a historical context (i.e., slavery, freedom, inhumane treatment, equality). Alongside the fight

for Black Americans were other movements related to Women, Asian Americans, and much

later, Queer identifying and undocumented folks. It is important to acknowledge that while many

cases were not mentioned by name, that they are not any less important in relation to the

progression of HE and society as a whole. It is also important to acknowledge that jumping

forward to the 2000s, much has changed, but that we (i.e., Americans) are nowhere near finished

addressing the ethical issue of inequities that are still prevalent in society.

Although there are many different topics that broadly address the connection between,

HE and the legal arena, the next few cases that changed the overall course of HE includes cases

that made waves in institutions’ policies, safety, and access. Moving backwards to the golden

age, post-war times brought changes to HE due to the Serviceman’s Readjustment Act (1944).

This act is widely known as the GI Bill, which according to the Department of Defense (2021),

provided assistance to veterans and their families for things like “tuition, books, supplies,

counseling services and a living allowance” (p. 1). This helped to avoid flooding the job market

and increase accessibility to attend institutions of HE for veterans (Department of Defense,

2021).
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The next case related to access in a different form, was the Family Educational Rights

and Privacy Act (FERPA) which according to the Department of Education (2021), initially gave

educational institutions and guardians the right to access education records. Included are rights of

the student and guidance for documentation and record keeping. It is important to note that there

are many moving parts to this act, and that it has been amended 9 times throughout the course of

history. What is most important to understand is that each institutions definition of directory

information varies. It is often taught to both student employees and faculty/staff to avoid giving

any information to parents or outside parties without a proper understanding and further,

guidance from the relevant professionals at the individual institution (Alexander & Alexander,

2017).

The final legal issues to be discussed in this paper, are two that heavily impacted HE

policies and procedures are related to safety, and discrimination based upon sex which causes

harm to an individual (e.g., physical, emotional). It is important to note that causing harm to an

individual or an entity are often ethical issues addressed in a code of ethics (i.e., counseling,

medical, social work). The original Title IX Education Amendments of 1972 attempted to

address discrimination based upon sex in programs that receive funding from the government.

Often, this was related to sports. Title IX has been revisited and amended recently in the years

2011 and 2020. In collaboration, the Clery Act (1990), a tragedy that changed institutions of HE

forever. Jeanne Clery was raped and murdered in her residence hall. This inspired different

conversations to occur on campuses about safety and transparency related to compliance (Clery

Center, 2021). According to the Clery Center (2021) amendments were made to the Clery Act in

2013 called the Violence Against Women Act (VAWA). Each of these legal issues mentioned
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work together to change the culture of institutions of HE and attempt to give guidance for

protections related to sex, and safety at large.

Conclusion

It is my understanding that while social control is often the goal of law, and that these

laws are written by those in power. Social change is brought to the courts, and in turn institutions

of HE, due to ethics. Although institutions were intended for the white male in the 1600s, ethics

brought us to where we are today. Although inequities still exist, every day is a chance for

individuals to fight for what is right. While many professional associations attempt to empower

their members with ethical standards with no consequences associated, and do not relate to the

broader areas of the institutions, these are not enough.

What can prevent issues mentioned in the above paragraphs that created law and changed

law to protect the people? Further, what can we (practitioners) do to ensure within the realm of

HE that we are fighting for our people and our right to a safe and prosperous education? Ethical

standards would lay down the groundwork of expectations for every practitioner working in

education in the US, just as other ethical codes do. It is clear that in education without guidance,

mistakes are made and people are hurt. The inconsistencies and inequities in education are

unspoken until things have gone too far. Medical professional are taught to lead by example

through moral code (Keenan, 2015). We must teach the teacher or risk the continuance of

failures within the law as it relates to justice and the protection of people. We can keep

addressing problems as they come, or we can practice prevention. There is power in written

word. There is power in us.

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References

Alexander, K. W., & Alexander, K. (2017). Higher education law policy and perspectives (2nd

ed.). New York: Routledge.

Clery Center. (2021). Policy and resources. https://clerycenter.org/policy-resources/

U.S. Department of Education. (2021). Family Educational Rights and Privacy Act (FERPA).

https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html

Friedman, L. M., & Hayden, G. M. (2017). American law: An introduction (3rd ed.). Oxford

University Press.

Lee, J. M., & Keys, S. W. (2013) Land grant but unequal: State one-to-one match funding for

1890 land-grant universities. [Policy brief]. Association of Public and Land Grant

Universities. https://www.aplu.org/library/land-grant-but-unequal-state-one-to-one-

match-funding-for-1890-land-grant-universities/file

Keenan, J. F. (2015). University ethics: How colleges can build and benefit from a culture of

ethics. London: Rowman & Littlefield.

Marbury v. Madison. (n.d.). Oyez. Retrieved February 20, 2021, from

https://www.oyez.org/cases/1789-1850/5us137

Our Documents. (2021). Morrill Act 1862. https://www.ourdocuments.gov/doc.php?

flash=false&doc=33

Thelin, J. R. (2011). A history of American higher education (2nd ed.). Baltimore: The Johns

Hopkins University Press.

Wilder, C. S. (2013). Ebony and ivy: Race, slavery, and the troubled history of America’s

universities. New York: Bloomsbury Press.