express authority over education built into their state constitutions. They have plenary authority to create, organize, support, and dissolve public higher educational institutions (see Section 11.2.1); and they have general police powers under which they charter and license private higher educational institutions and recognize their authority to grant degrees (see Section 11.2.3). States also authorize out-of-state institutions to offer courses or degree programs online to residents in the state. The states also promulgate state administrative procedure acts, open meetings and open records laws, and ethics codes that guide the operations of most state institutions. In addition, states have fiscal powers (especially taxation powers) and police powers regarding health and safety (including the power to create and enforce criminal law) that they apply to private institutions and that substantially affect their operations. And more generally, state courts establish and enforce the common law of contracts and torts that forms the foundation of the legal relationships between institutions and their faculty members, students, administrators, and staffs. (See Section 1.4.2.4 regarding common law and Section 1.4.4 regarding the role of the courts.)
The federal government, in contrast to the state governments, is a government of limited powers, and its constitutional powers, as enumerated in the federal Constitution, do not include any express power over education. Through other express powers, however, such as its spending power (Section 11.3.1), and through its implied powers, the federal government exercises substantial governance authority over both public and private higher education.3 Under its express powers to raise and spend money, for example, Congress provides various types of federal aid to most public and private institutions in the United States, and under its implied powers Congress establishes conditions on how institutions spend and account for these funds. Also under its implied powers, Congress provides for federal recognition of private accrediting agencies—among the primary external private “governors” of education—whose accreditation judgments federal agencies rely on in determining institutions' eligibility for federal funds (see Section 12.1.2). The federal government also uses its spending power in other ways that directly affect the governance processes of public and private higher educational institutions. Examples include the federally required processes for accommodating students with disabilities (see Section 8.4); for keeping student records (see Section 7.8.1); for achieving racial and ethnic diversity through admissions and financial aid programs (see Sections 7.2.5 and 7.3.4); and for preventing and remedying sex discrimination and sexual harassment (see, for example, Sections 8.5 and 11.5.3).
Under other powers, and pursuing other priorities, the federal government also establishes processes for copyrighting works and patenting inventions of faculty members and others (see, for example, Section 11.3.2.3); for enrolling and monitoring international students (see Section 7.7.3); for resolving employment disputes involving unionized workers in private institutions (see Sections 4.3 and 5.3); and for resolving other employment disputes concerning health and safety, wages and hours, leaves of absence, unemployment compensation, retirement benefits, and discrimination. In all these arenas, federal law is supreme over state and local law, and federal law will preempt state and local law that is incompatible with the federal law.
Furthermore, the federal courts are the primary forum for resolving disputes about the scope of federal powers over education, and for enforcing the federal constitutional rights of faculty members, students, and others (see, for example, Sections 6.1 and 9.4). Thus, federal court judgments upholding federal powers or individuals' constitutional rights serve to alter, channel, and check the governance activities of higher education institutions, especially public institutions, in many important ways.
Local governments, in general, have much less involvement in the governance of higher education than either state governments or the federal government. The most important and pertinent aspect of local governance is the authority to establish, or to exercise control over, community colleges. But this local authority does not exist in all states, since state legislatures and state boards may have primary governance authority in some states. Local governments may also have some effect on institutions' internal governance—and may superimpose their own structures and processes upon institutions—in certain areas such as law enforcement, public health, zoning, and local taxation. But local governments' authority in such areas is usually delegated to it by the states and is thus dependent on, and subject to being preempted by, state law (see Section 11.1.1).
External public governance structures and processes are more varied than those for internal governance—especially with regard to public institutions whose governance depends on the particular law of the state in which the institution is located (see Section 11.2.2). The statewide structures for higher education, public and private, also differ from state to state (see Section 11.2.1). What is common to most states is a state board (such as a state board of higher education) or state officer (such as a commissioner) that is responsible for public higher education statewide. This board or officer may also be responsible for private higher education statewide, or some other board or officer may have that responsibility. If a state has more than one statewide system of higher education, there may also be separate boards for each system (for example, the University of California system and the California State University system). In all of these variations, states are typically much more involved in external governance for public institutions than they are for private institutions.
At the federal level, there are also a variety of structures pertinent to the external governance of higher education, but they tend to encompass all postsecondary institutions, public or private, in much the same way. The most obvious and well known part of the federal structure is the U.S. Department of Education. In addition, there are numerous other cabinet-level departments and administrative agencies that have either spending authority or regulatory authority over higher education. The Department of Homeland Security (DHS), for instance, monitors international students while they are in the country to study (see Section 7.7.4); the Department of Health and Human Services (HHS) administers the Medicare program, which is important to institutions with medical centers; the Department of Labor administers various laws concerning wages, hours, and working conditions; the Occupational Safety and Health Administration (OSHA) administers workplace health and safety laws; several agencies have authority over certain research conducted by colleges and universities; and various other agencies, such as the National Institutes of Health (NIH) and the Department of Defense (DOD), provide research grants to institutions of higher education and grants or fellowships to faculty members and students.
At the local level, there is less public external governance than at the state and federal levels. The primary local structures are community college districts that have the status of local governments and community college boards of trustees that are appointed by or have some particular relationship with a county or city government. In some states, issues may arise concerning the respective authority of the community college board and the county legislative body (see Section 11.1.1). Some local administrative agencies, such as a human relations commission or an agency that issues permits for new construction, will also have influence over certain aspects of governance, as will local police forces.
Private external governance, like public external governance, also varies from institution to institution. Most postsecondary institutions, for example, are within the jurisdiction of several, often many, accrediting agencies. The agencies to which an institution is subject will depend on the region of the country in which the institution is located and the types of academic and professional programs that the institution offers. There are also various athletic conferences to which institutions may belong, depending on the level of competition, the status of athletics within the
