College and university policies are central to the legal function of the institution. They create legal rights of students, faculty, and staff. They create legal duties and obligations for the institution. They implement critical functions with legal components such as compliance, risk management, and governance. They define the institutional mission and values, which in turn have significant legal implications. They are an important part of preventive lawyering, helping to keep the institution out of litigation and other legal trouble. They protect the institution’s name and reputation, which are critical parts of the lawyer’s job. Policies are central to change management and institutional reforms that are at the core of legal advice and counsel.
For these reasons, lawyers for colleges and universities play an important role in formulating, drafting, and implementing institutional policies. This column discusses five ways in which the law and lawyers intersect with college and university policies.
- Policies create contracts. The nature of the legal relationship between students, faculty, and staff on the one hand, and the college and university on the other, is in significant part one of contract. As to students, policies in various forms (handbooks, codes of conduct, disciplinary procedures, housing and food services, academic requirements, etc.) can, depending on the language used and other factors, create legal rights and responsibilities that define the relationship, inform and constrain decision making, and may be enforced in court. As to faculty and staff, policies define the employment contract. At will or term employment, cause for termination, the meaning of tenure, collective bargaining agreements, and other human resources issues are fundamentally contract issues that are determined by institutional policies.
- Policies create legal duties to third parties. Beyond contracts, colleges and universities can be liable under tort law to third parties who come on campus; they can be liable under Title IX and other laws to protect the safety of students; they are obligated not to discriminate; and they can be liable for harm caused by environmental, health and safety conditions, et cetera. In all of these instances, institutional policies help create and define the scope of the institution’s legal obligations.
- The following representative categories of policies relate directly to legal issues:
- Delegations of authority to sign contracts
- Defense and indemnification of employees
- Conflicts of interest and commitment
- Intellectual property and use of name policies
- Ethics and compliance policies
- Privacy, including issues relating to personal data, FERPA, and HIPAA
- Enterprise risk management
- Crisis management
- Nonretaliation
- There are legal issues in drafting and administering policies. Drafting is a legal skill. Lawyers can help: avoid ambiguities in language; analyze and predict “what can go wrong” so that policies properly anticipate the future; audit the past—based on experiences in litigation or otherwise—to avoid similar problems with policies in the future; define the degree of risk and uncertainty that the client may accept; and provide exceptions and gap fillers. In administering policies, lawyers can advise on a system of regular review so that policies are up to date; they can help create structures for the efficient administration of policies (should there be a policy on policies? a policy committee? training?); and they can advise on difficult issues of implementation.
- Policies support institutional reforms, change management, and preventive law. Developing good policies helps colleges and universities address new challenges, respond to past problems, and prevent future crises. Lawyers can help develop policies that address issues of current importance such as free speech, race and affirmative action, sexual assault and abuse, foreign scholars, immigration, and integrity in admissions.
Boards should consider whether to include a review of institutional policies as part of their oversight responsibilities. In any such review board members and senior executives should discuss with their lawyers how policies address legal issues and what changes may be appropriate to serve better the institutional mission and respond to current challenges.
Steve Dunham, JD, is the vice president and general counsel for Penn State University.
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