href="#ulink_11714c41-5772-5100-8005-558d462098fc">Section 1.5 below).
Furthermore, the governance structures and processes for private secular institutions differ from those for private religious institutions. These variations exist in part because religious institutions have different origins and sponsorship, and different missions, than private secular institutions, and in part because the federal First Amendment and comparable state constitutional provisions and laws afford religious institutions an extra measure of autonomy from government regulations, beyond that of private secular institutions, and also limit their eligibility to receive government support (see generally Section 1.6 below).
Governance structures and processes provide the legal and administrative framework within which higher education problems and disputes arise. They also provide the framework within which parties seek to resolve problems and disputes (see, for example, Section 2.3) and institutions seek to prevent or curtail problems and disputes by engaging in legal and policy planning (see Section 1.7). In some circumstances, governance structures and processes may themselves create problems or become the focus of disputes. Internal disputes (often turf battles) may erupt between various constituencies within the institution—for example, a dispute over administrators' authority to change student grades given by faculty members or to establish international satellite campuses. External governance disputes may erupt between an institution and an outside entity—for example, a dispute over a state board of education's authority to approve or terminate certain academic programs at a state institution, or a dispute over an athletic association's charges of irregularities in an institution's intercollegiate basketball program. Such disputes may spawn major legal issues about governance structures and processes that are played out in the courts. (See Section 6.2.3 for examples concerning internal governance and Sections 11.2 and 12.1 for examples concerning external governance.) Whether a problem or dispute centers on governance, or governance simply provides the framework, a full appreciation of the problem or dispute and the institution's capacity for addressing it effectively requires a firm grasp of the pertinent governance structures and processes.
Typically, when internal governance is the context, an institution's governing board or officers are pitted against one or more faculty members, staff members, or students; or members of these constituencies are pitted against one another. Chapters 3 through 9 of this book focus primarily on such issues. When external governance is the context, typically a legislature, a government agency or board, a private association or other private organization, or sometimes an affiliated entity or outside contractor is pitted against a higher educational institution (or system) or against officers, faculty members, or students of an institution. Chapters 10 and 11 of this book focus primarily on such issues.
The two categories of internal and external governance often overlap, especially in public institutions, and a problem in one category may often cross over to the other. An internal dispute about sexual harassment of a student by an employee, for instance, may be governed not only by the institution's internal policies on harassment but also by the external nondiscrimination requirements in Title IX of the Education Amendments of 1972 (see Section 8.5). Similarly, such a sexual harassment dispute may be heard and resolved not only through the institution's internal processes (such as a grievance mechanism) but also externally through the state or federal courts, the U.S. Department of Education, or a state civil rights agency. There are many examples of such crossovers throughout this book.
1.3.2 Internal governance. As a keystone of their internal governance systems, colleges and universities create “internal law” (see Section 1.4.3) that delineates the authority of the institution and delegates portions of it to various institutional officers, managers, and directors, to departmental and school faculties, to the student body, and sometimes to captive or affiliated organizations. Equally important, internal law establishes the rights and responsibilities of individual members of the campus community and the processes by which these rights and responsibilities are enforced. Circumscribing this internal law is the “external law” (see Section 1.4.2 below) created by the federal government, state governments, and local governments through their own governance processes. Since the external law takes precedence over internal law when the two are in conflict, institutions' internal law must be framed against the backdrop of applicable external law.
Internal governance structures and processes may differ among institutions depending on their status as public, private secular, or private religious (as indicated in Section 1.3.1), and also depending on their size and the degree programs that they offer. The internal governance of a large research university, for instance, may differ from that of a small liberal arts college, which in turn may differ from that of a community college. Regardless of the type of institution, however, there is substantial commonality among the internal structures of U.S. institutions of higher education. In general, every institution has, at its head, a governing board that is usually called a board of trustees or (for some public institutions) a board of regents. Below this board is a chief executive officer, usually called the president or (for some public institutions) the chancellor. Below the president or chancellor are various other executive officers—for example, a chief business officer, a chief information officer, and a general counsel. In addition, there are typically numerous academic officers, chief of whom is a provost or vice president for academic affairs. Below the provost or vice president are the deans of the various schools, the department chairs, and the academic program directors (for instance, a director of distance learning, a director of internship programs, or a director of academic support programs). There are also managers and compliance officers, such as risk managers, facilities managers, affirmative action officers, and environmental or health and safety officers, and directors of particular functions, such as admissions, financial aid, and alumni affairs. These managers, officers, and directors may serve the entire institution or may serve only a particular school within the institution. In addition to these officers and administrators, there is usually a campus-wide organization that represents the interests of faculty members (such as a faculty senate) and a campus-wide organization that represents the interests of students (such as a student government association). Some institutions also maintain separate staff senates.
In addition to their involvement in a faculty senate or similar organization, faculty members are usually directly involved in the governance of individual departments and schools. Nationwide, faculty participation in governance has long been sufficiently established that internal governance is often referred to as “shared governance” or “shared institutional governance.” In recent times, as many institutions have been reconsidering their governance structures, usually under pressure to attain greater efficiency and cost-effectiveness, the concept and the actual operation of shared governance have become a subject of renewed attention. As institutions have increased their reliance on non-tenure-track faculty, an important issue related to shared governance involves the inclusion or exclusion of these faculty members from governance structures and bodies.
1.3.3 External governance. The states are generally considered to be the primary external “governors” of higher education, at least in terms of legal theory. State governments are governments of general powers that
