Most colleges and universities work diligently to develop a strong culture that includes a commitment to core values. Legal principles are key components of many of these values. The law and lawyers play a critical function in defining the core values and culture at colleges and universities. This column will address some of the legal issues that are at the heart of a representative set of core values.
- Integrity and honesty. Colleges and universities are subject to national, state, and local laws. They are bound by internal policies, including ethical standards, which have legal consequences. Part of the fiduciary duty of board members (itself a legal standard) is obedience to the mission and applicable laws. Whether an institution and its leaders act with integrity is defined in significant part by compliance with these laws, ethical standards, and legal principles. Similarly, institutions and their leaders have legal duties to act with honesty, including in dealings with governments and constituents. A failure to tell the truth can lead to violations of law and legal claims, including misrepresentation, violations of false claims acts, government investigations, and claims by whistleblowers. A failure to properly adhere to the core values of honesty and integrity is a significant legal risk and can cause substantial reputational and financial harm.
- Responsibility and accountability. Boards, senior leaders, faculty, staff, and students owe legal duties to the institution, to each other, and to the community. The institution itself owes duties to its constituents and to the public. Duties, the legal obligations that flow from them, and principles of discipline and enforcement derive from the law (consider compliance obligations based on statutes and regulations and negligence claims based on breach of the duty of care) and are fundamental to the core values of responsibility and accountability.
- Diversity and equity. The core value of diversity is based in part on constitutional standards (recognized by the Supreme Court in the line of cases beginning with Bakke and continuing through the Michigan and Fisher cases) and helps underscore the need for affirmative action. Also, the lack of diversity can reflect systemic and institutional racism and thus have legal consequences. In turn, equity is based in part on the legal and constitutional standards of equal protection, non-discrimination, bias, Title VI, and Title IX. The core values of diversity and equity, and the legal principles upon which they are based, impact a wide range of university activities, including admissions, financial aid, employment, access and affordability initiatives, and teaching.
- Respect. As a core value, respect highlights the importance of respecting the individual rights of others, personal freedom, and safety. Respect is substantially related to legal issues of freedom of speech, due process (a constitutional principle that is shorthand for fairness), the right to be free of discrimination, protection from harm, and human rights. Respect individual rights, including individual differences, coupled with fair and equitable treatment, are fundamental parts of the Rule of Law, which is central to a democratic society and therefore a core value.
- Excellence. Central to the mission of most colleges and universities is excellence in teaching, research, and service. The law helps promote excellence by ensuring that university policies (including policies on tenure, academic freedom, institutional autonomy, and shared governance), which serve as internal laws and are interpreted by lawyers, are rational, free of bias, equitable, afford opportunity, support individual rights, and promote excellence through diversity. By helping to create and manage policies and procedures that meet these standards, the law and lawyers help create the policy infrastructure that is necessary for excellence to thrive at colleges and universities.
- Community. As a core value, community includes fostering relationships among the multiple constituents that make up the higher education community. The law helps define these relationships, including through contracts, private associations, and federal, state, and local laws. Community as a core value also includes the notion of service to others, including the public interest. In their role as guardian of the mission (see “Legal Standpoint” in Trusteeship, September/ October 2018), lawyers help define the scope and substance of this mission of service.
Steve Dunham, JD, is the vice president and general counsel for Penn State University
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