preacher, Gilles, had attempted to preach on the library lawn of the Vincennes University, a public university. The university cited its policy of requiring that anyone speaking on campus property be invited by a faculty member or student; Gilles had not been invited to speak. Rejecting Gilles's First Amendment claim, the court noted that the university's custom and practice was content-neutral and thus not a violation of Gilles's right to free speech.
1.4.4 The role of case law. Every year, the state and federal courts reach decisions in hundreds of cases involving postsecondary education. Opinions are issued and published for many of these decisions. Many more decisions are reached and opinions rendered each year in cases that do not involve postsecondary education but do elucidate important established legal principles with potential application to postsecondary education. Judicial opinions (case law) may interpret federal, state, or local statutes. They may also interpret the rules and regulations of administrative agencies. Therefore, in order to understand the meaning of statutes, rules, and regulations, one must understand the case law that has construed them. Judicial opinions may also interpret federal or state constitutional provisions and may sometimes determine the constitutionality of particular statutes or rules and regulations. A statute, rule, or regulation that is found to be unconstitutional because it conflicts with a particular provision of the federal or a state constitution is void and no longer enforceable by the courts. In addition to these functions, judicial opinions also frequently develop and apply the common law of the jurisdiction in which the court sits. And judicial opinions may interpret postsecondary institutions' “internal law” (Section 1.4.3) and measure its validity against the backdrop of the constitutional provisions, statutes, and regulations (the “external law”; Section 1.4.2) that binds institutions.
Besides their opinions in postsecondary education cases, courts issue numerous opinions each year in cases concerning elementary and secondary education (see, for example, the Wood v. Strickland case in Section 4.4.4. and the Goss v. Lopez case in Section 9.3.2). Insights and principles from these cases are often transferable to postsecondary education. But elementary or secondary precedents cannot be applied routinely or uncritically to postsecondary education. Differences in the structures, missions, and clienteles of these levels of education may make precedents from one level inapplicable to the other or may require that the precedent's application be modified to account for the differences. (For an example of a court's application of precedent developed in the secondary education context to a higher education issue, see the discussion of Hosty v. Carter in Section 10.3.3.)
A court's decision has the effect of binding precedent only within its own jurisdiction. Thus, at the state level, a particular decision may be binding either on the entire state or only on a subdivision of the state, depending on the court's jurisdiction. At the federal level, decisions by district courts and appellate courts are binding within a particular district or region of the country, while decisions of the U.S. Supreme Court are binding precedent throughout the country. Since the Supreme Court's decisions are the supreme law of the land, they bind all lower federal courts as well as all state courts, even the highest court of the state.
1.4.5 Researching case law. The important opinions of state and federal courts are published periodically and collected in bound volumes that are available in most law libraries. For state court decisions, besides each state's official reports, there is the National Reporter System, a series of regional case reports comprising the (1) Atlantic Reporter (cited A., A.2d, or A.3d), (2) North Eastern Reporter (N.E., N.E.2d, or N.E.3d), (3) North Western Reporter (N.W. or N.W.2d), (4) Pacific Reporter (P., P.2d, or P.3d), (5) South Eastern Reporter (S.E. or S.E.2d), (6) South Western Reporter (S.W., S.W.2d, or S.W.3d), and (7) Southern Reporter (So., So.2d, or So.3d). Each regional reporter publishes opinions of the courts in that particular region. There are also special reporters in the National Reporter System for the states of New York (New York Supplement, cited N.Y.S.) and California (California Reporter, cited Cal. Rptr.).
In the federal system, U.S. Supreme Court opinions are published in the United States Supreme Court Reports (U.S.), the official reporter, as well as in two unofficial reporters, the Supreme Court Reporter (S. Ct.) and the United States Supreme Court Reports—Lawyers' Edition (L. Ed. or L. Ed. 2d). Supreme Court opinions are also available, shortly after issuance, in the loose-leaf format of United States Law Week (U.S.L.W.), which also contains digests of other recent selected opinions from federal and state courts. Opinions of the U.S. Courts of Appeals are published in the Federal Reporter (F., F.2d, or F.3d). U.S. District Court opinions are published in the Federal Supplement (F. Supp., F. Supp. 2d, or F. Supp. 3d) or, for decisions regarding federal rules of judicial procedure, in Federal Rules Decisions (F.R.D.). All of these sources, as well as those for state court decisions, are online in both the Westlaw and LexisNexis legal research databases. Opinions are also available online, in most instances, from the courts themselves. For example, opinions of the U.S. Supreme Court are available from the Court's website at https://www.supremecourt.gov/opinions/slipopinion/18. There are also free websites that provide access to court opinions. Three good examples are Cornell Law School's Legal Information Institute (https://www.law.cornell.edu), Justia (https://law.justia.com), and Google Scholar (https://scholar.google.com). The Legal Information Institute also operates Oyez (https://www.oyez.org), which has audio recordings of U.S. Supreme Court oral arguments.
Section 1.5. The Public-Private Dichotomy
1.5.1 Overview. Historically, higher education has roots in both the public and the private sectors, although the strength of each one's influence has varied over time. Sometimes following and sometimes leading this historical development, the law has tended to support and reflect the fundamental dichotomy between public and private education.
A forerunner of the present university was the Christian seminary. Yale was an early example. Dartmouth began as a school to teach Christianity to the Native Americans. Similar schools sprang up throughout the American colonies. Though often established through private charitable trusts, they were also chartered by the colony, received some financial support from the colony, and were subject to its regulation. Thus, colonial colleges were often a mixture of public and private activity. The nineteenth century witnessed a gradual decline in governmental involvement with sectarian schools. As states began to establish their own institutions, the public-private dichotomy emerged. In recent years this dichotomy has again faded, as state and federal governments have provided larger amounts of financial support to private institutions, many of which are now secular.
Although private institutions have always been more expensive to attend than public institutions—tuition for public colleges, however, has also increased steadily in recent years to lessen the overall gap—private higher education has been a vital and influential force in American intellectual history. The private school can cater to special interests that a public one often cannot serve because of legal or political constraints. Private education thus draws strength from “the very possibility of doing something different than government can do, of creating an institution free to make choices government cannot—even seemingly arbitrary ones—without having to provide a justification that will be examined in a court of law” (H. Friendly, The
