Appendix d

Question 0

Academic Freedom

Answer 0

The prerogatives of faculty and students to pursue research, teaching, and learning without interference from the institution or the government. Can be protected by law or by custom and usage. Also can refer to the prerogatives of the institution.

Question 1

Academic & Judicial Deference

Answer 1

When a court defers the decision to the “expertise” of the faculty, academic administrators, or administrative agency of government.

Question 2

Administrative regulations

Answer 2

Rules from the administrative agency, federal, state, or local, to implement a particular law or body of laws enacted by a legislative body.

Question 3

Administrative Procedure Acts

Answer 3

Federal law, APA, and similar state laws that govern practice and proceedings before federal, or state, administrative agencies.

Question 4

Affirmative Action

Answer 4

Considering race,gender, nations origin, or some other characteristic protected under federal or state nondiscriminational laws to provide a preference or other advantage for an underrepresented or disadvantages group. Usually used int context with admission or employment decisions.

Question 5

Arbitration

Answer 5

A dispute resolution process in which a neutral individual, acting as a private judge, conducts a hearing, reviewed evidence, and issues an opinion, called an “award.” Typically selected by the parties.

Question 6

Agency fee

Answer 6

A payment in lieu of union dues by an individual who is not a member of a union but who as a member of the bargaining unit, is represented by that union.

Question 7

Authority

Answer 7

Legally recognized power of the board of trustees, and of officers and other personnel to whom the board delegates power, to make decisions that bind the institution. May also refer to powers of branches if gov or administrative agencies.

Question 8

Captive organization

Answer 8

An organization, legally independent, that is controlled by a college or unive.

Question 9

Cause of action

Answer 9

Facts or allegations that will allow for a law suit

Question 10

Charitable immunity

Answer 10

A common law doctrine that immunized nonprofit organizations whose purpose is educational or charitable from liability from common law negligence. Usually limited.

Question 11

Collective bargaining

Answer 11

When a union votes to allow the union or association to negotiate with the employer over their terms and conditions of employment. All employees, members or not, are represented.

Question 12

Common law

Answer 12

A law that does not derive from a constitution, administrative regulations, and instead comes from court decisions

Question 13

Concurring opinion

Answer 13

When appellate court judges in the minority agrees with the ruling of the judges in the majority but adds something to it.

Question 14

Constitution

Answer 14

US or state constitution that are fundamental law of the nation and the states. Each organizes the government, powers of the government, and limits of gov.

Question 15

Contract

Answer 15

An agreement between parties that creates mutual obligations to take or not to take actions. Usually enforceable in law.

Question 16

Contract, express

Answer 16

Oral or written contract between parties explicitly statin the agreement between the parties.

Question 17

Contract, implied

Answer 17

When no contract exist but court argues that the mutual understandings of both parties will be upheld.

Question 18

Discovery

Answer 18

A process prior to trial by which the parties attempt to obtain facts and information about the case from each other in order to prepare for trial. Includes depositions, written interrogations, production of documents or things, physical and mental examinations and requests for amiss ion of facts

Question 19

De facto tenure

Answer 19

A claim that a faculty member has tenure by elapsing of the contractual probationary period without the institution making any negative employment decision about the faculty member.

Question 20

De novo

Answer 20

Used when reviewing court examines a matter independently, without relying on the fact-finding of, or according deference to, previous decision makers who have examined the same matter.

Question 21

Due process clause

Answer 21

A provision of the federal and state constitution that prohibits the government from depriving an individual of life, liberty, or property without providing that individual certain protections.

Question 22

Establishment clause

Answer 22

A provision of federal or state constitution that prohibit the gov from sponsoring or supporting any particular religion or religion in general. In the first amendment.

Question 23

Estoppel

Answer 23

a common law doctrine providing that one person’s (the promisee’s) justifiable reliance on a statement or promise of another person (the promisor) estops the promisor from contradicting the statement of promise if the promisees reliance on it led directly to a detriment or injustice to the promisee.

Question 24

Faculty

Answer 24

group of professors or an individual professor. They are usually assigned a rank (assistant professor, associate professor, professor etc) May be promoted after a process of evaluation that typically includes several levels of review by faculty peers, other faculty groups, admin. admin, and board members. Are either tenure track or non-tenure track.

Question 25

Federalism

Answer 25

division of power between the state and federal government which is what the American government is based on.

Question 26

Foreign Commerce Clause

Answer 26

A sub clause of the commerce clause of the US constitution that authorizes Congress to regulate commerce with foreign nations

Question 27

Free exercise clause

Answer 27

A provision of the federal constitution or state constitution that prohibits government from infringing upon the religious practice of individuals or religious bodies. The federal constitutions free exercise clause is in the first amendment.

Question 28

Governance

Answer 28

The structures and processes by which higher education institutions and systems are managed in their dat-to-day operations as well as their longer range policy making.

Question 29

Governmental Immunity

Answer 29

a set of doctrines that in various ways protect government bodies from certain types of lawsuits and legal claims, like tort claims. Also called sovereign immunity. Government can waive the immunity.

Question 30

Holding “holding of the court”

Answer 30

a part of a judicial opinion that constitutes the court’s ruling on, or resolution of, each particular legal issue in the case.

Question 31

Implied private cause of action

Answer 31

A cause of action that private individuals may bring in court to enforce rights granted by a particular statute even though the statute does not expressly authorize such suits. Whether or not courts will authorize such suits depends on the particular statue involved.Have not frequently arisen under laws passed under the federal spending power (such as title IX and section 504 of the rehabilitation Act)

Question 32

Incorporation by reference

Answer 32

when a document is incorporated into an institutional contract or policy. The terms of the incorporated document become part of the terms of the contract or policy and are enforceable in court to the same extent as the contract or policy.

Question 33

Indemnification

Answer 33

Reimbursing an agent of the institution for any money damages the agent is liable for on a legal claim against the agent involving actions taken on behalf of the institution. May also cover costs and expenses an agent incurs in defending against such a legal claim or provide for legal representation for the agent. Can also refer to an organization reimbursing the institutional.

Question 34

in loco parentis

Answer 34

“in role or in place of the parents” Concept is no longer used by te courts, gave colleges the authority to control student’s conduct to a similar extent as parents could do so and exempted the college from most legal liability for taking such actions

Question 35

Legal liability

Answer 35

The responsibility that one party has for a wrong done to another, when a court or administrative agency has found that the wrong constitutes a violation of law.

Question 36

Mediation

Answer 36

a dispute resolution process in which a neutral third party is engaged to assist the parties to a dispute to resolve the conflict. The mediator has no authority to resolve the dispute but instead works with the parties so that they may reach their own voluntary resolution.

Question 37

Mootnes

Answer 37

When a court refuses to assert a case because the issue is no longer “live” or viable

Question 38

Negligence

Answer 38

a legal claim or cause of action that arises when a person or entity owes a “duty of care” to another person or entity, fails to exercise reasonable care with respect to that person or entity, and thereby causes injury to that person or entity. It is a subcategory of tort law which is based on state common law.

Question 39

Official immunity

Answer 39

A state law doctrine that protects higher level government officials from liability for certain torts, such as negligence and defamation. Must have been within the scope of his or her authority and have been a discretionary act involving policy judgement.

Question 40

Overbreadth

Answer 40

A first amendment doctrine requiring that governmental relations of speech be “narrowly tailored” to avoid sweeping within their coverage speech activities that would be constitutionally protected. Regulations that fail to meet this requirement are over broad or suffer from overbreadth.

Question 41

Precedent

Answer 41

A ruling by a court in aprior case with similar facts or applying similar principles if kaw as a current case under consideration. Refers also to case law (judicial opinions) of a particular jurisdiction. Precedents are binding only in the jurisdiction in which the case is decided, and only upon courts of the same or lower status.

Question 42

Plurality opinion

Answer 42

A judicial opinion that fains the most votes among the judfes or justices ruling on the case, but an insufficient number of votes to constitute a majority of the court. A plurality opinion, unlike a majority opinion, is therefore not a binding precedent.

Question 44

Plaintiff

Answer 44

the individual who initiates a lawsuit

Question 45

Preclusive effect (or Preclusion)

Answer 45

The effect that a court ruling in a particular case may have on the capacity of the parties to raise similar issues or arguments in a later case. When there is preclusion (or preclusive effect), the court in the later case will prohibit one of the parties from proceeding with certain issues or arguments.

Question 46

Preemption

Answer 46

A legal doctrine applicable to situation in which a statute or administrative regulation of one government potentially conflicts with or intrudes upon a statute or regulation of another government. under the preemption doctrine, the enactment of the superior government will prevail if the statute or regulation is with that government’s scope of authority. For example, a federal statute may supersede or “preempt” a similar state law.

Question 47

Private Institution

Answer 47

An institution not created or operated by a federal, state, or local government entity. Usually a private institution is created by and operated under a corporate charter.

Question 48

Private right of action

Answer 48

a cause of action that private individuals may bring in court to enforce rights granted by a particular statute. A private right of action may be either express or implied.

Question 49

Property interest

Answer 49

Refers to legal interests in property that may be less than property rights as such. Special meaning under the 14 and 5 amendment due process clause of the federal and state constitutions.

Question 50

Property right

Answer 50

Legal right to specific real or personal property tangible or not. Often based on common law but may also be created by state or federal statutes which may also provide for the enforcement of property rights.

Question 51

Public forum

Answer 51

In the 1st amendment law, gov property (land or buildings) that is traditionally, or by official policy or practice, available to persons for expressive activities, The “public forum doctrine” limits the extent to which government may regulate the use of such property for expressive purposes. For application of the public forum concept to higher education.

Question 52

Public Institution

Answer 52

An institution that is created or operated by a state government or, sometimes, by the federal government or a local government. Usually a public institution is created by, and operated pursuant to, state statutes or provisions of the state constitution.

Question 53

Qualified Immunity

Answer 53

A set of doctrines that in various ways protect government officers and employees from certain types of lawsuits and legal claims. In particular, qualified immunity is a defense to damages claims brought against government employees under the federal civil rights statute know as “section 1983”. In state law, qualified immunity may sometimes be called official immunity or qualified privilege.

Question 54

Religious Institution

Answer 54

A private education institution that is operated by a church or other sectarian organization or is otherwise formally affiliated with a church or sectarian organization as well as an institution that has no affiliation with an outside religious organization but nevertheless proclaims a religious mission and is guided by religious values.

Question 55

Remand

Answer 55

An order by an appellate court that returns a case to the lower court from which the cad came and directs that court to receive new evidence, proceed trial, or otherwise reconsider its previous ruling, being guided by the principles articulated by the appellate court.

Question 56

Respondeat Superior

Answer 56

A legal doctrine under which an employer may sometimes be held liable or the torts or other unlawful conduct of its employees even though the employer did authorize the conduct or have actual knowledge of it.

Question 57

Section 1983

Answer 57

A federal civil rights statute, originally enacted in the reconstruction era that provides for suits against state and local government agencies and employees to enforce federal constitutional rights.

Question 58

Sovereign immunity

Answer 58

A doctrine that precludes litigants from shin “the sovereign”- usually meaning a state government or federal government - unless the sovereign has waived its immunity and consented to suit. Sometimes also called governmental immunity. State law concepts of sovereign immunity are particularly important with respect to tort litigation; and federal law concepts of sovereign immunity are particularly important in federal civil rights litigation .

Question 59

Standing

Answer 59

A technical legal doctrine referring to the capacity of a party to bring a lawsuit on a particular matter or to raise a particular issue in litigation. In vernal a party will have standing whenever that party has sufficient “personal stake” in the controversy that is before the court.

Question 60

State action

Answer 60

In constitutional law, a decision or action that is made or taken by government, or is otherwise attributable to government (federal, state, local) and may therefore be challenged as violating federal constitutional rights, The “state action doctrine” provides that certain decisions or actions of ostensibly private entities may be considered state action when they have sufficiently close relationship to government.

Question 61

Statute

Answer 61

An official act of legislature enacted pursuant to the constitutional requirements for law making

Question 62

Strict scrutiny

Answer 62

A strong or maximal form of judicial review that courts use for certain types of constitutional claims and that places a heavy burden on the governmental defendant to justify its actions. Strict scrutiny is most commonly used in equal protection cases where government has discriminated on grounds of race or national origin and in freedom of expression cases where government has restricted expression due to its content or viewpoint. Courts apply strict scrutiny usually require the governmental defendant to prove that the action being challenged was in furtherance of a “compelling state interest” and was “narrowly tailored” to achieve that interest.

Question 63

Substantive due process

Answer 63

A body of constitutional law, derived from the 14 amendment’s due process clause or comparable state constitutional clauses, that focuses on the validity of certain governmental decisions, rather than on the procedures government used to reach the decision. Usually based on gov action that deprives an individual of some liberty that is alleged to be “fundamental” for instance, the liberty of parents to raise their children.

Question 64

summary judgement

Answer 64

A judgement on the merits issued by a trial court prior to and in lieu of a trial. The judgement may resolve the entire case or only certain issues in the case. The court must determine that there are no disputed “material facts” and that even when the court accepts the version of the facts articulated by the party opposing the motion for summary judgement, the party cannot met the requirements for the claim(s) or defense(s) at issue. These may be appealed, since they are final rulings on the merits.

Question 65

Supremecy clause [of the US constitution]

Answer 65

the clause in article VI, section 2 of the US constitution, which makes federal law “the supreme law of the land” and gives federal law precedence over all inconsistent state law, Federal law includes not only the federal constitution, but also federal statutes, administrative regulations, treaties, and executive orders, so long as they are within the scope of the federal governments powers under the constitution.

Question 66

Suspect class

Answer 66

A term used under the 14 amendments equal protection clause to signify a class of persons that is defined by race, national origin, or other characteristic that courts consider to be an impermissible bases for governmental decision making. When government relies on such a characteristic to disadvantage a class of persons, courts will be “suspicious” of the governments action and will uphold it only if the gov can meet the standards to “strict scrutiny”

Question 67

Tenure

Answer 67

Status that the faculty member is given when they meet certain standards. Entitles the member to protections, established by statute or contract, that precludes the inst. from dismissing the member unless it can demonstrate a substantial cause for doing so. (incompetence, negligence, moral turpitude or financial exigency)

Question 68

Tort

Answer 68

A civil wrong, other than a breach of contact, for which the common law will allow a remedy through the courts, Negligence is the most frequently asserted type of tort.

Question 69

Ultra vires

Answer 69

An action that is beyond the scope of authority of a gov agency, an organization, or a person, and is thus invalid.

Question 70

Vagueness (doctrine)

Answer 70

A due process doctrine that prohibits gov from enforcing regulations of conduct that are sufficiently unclear that the persons being regulated cannot understand what is required of prohibited and conform their conduct accordingly. There is also a 1st amendment version of the vagueness doctrine that requires an even higher standard of clarity when government is regulating speech.