If complying with a new law or regulation would be harmful to your institution, what criteria would you use to determine whether to comply, negotiate, stall, resist, or refuse to comply?

A governing board has three overarching fiduciary duties that must guide any response to new legislation/regulations:

Duty of care—the responsibility to act with informed, deliberative judgment.
Duty of loyalty—the responsibility to act in the best interests of the institution, not respond to inappropriate external pressures.
Duty of obedience—ensure compliance with applicable law, unless doing so is unlawful, unconstitutional, or would force the institution to violate higher legal obligations.

Based on those duties, here are the criteria I would advise a board to use to evaluate its response.

Legal Analysis: Is the New Law or Regulation Valid, Constitutional, or Preempted?

If the law/regulation is likely to violate federal or constitutional protections, the board may consider first stalling, negotiating, or challenging it. Moreover, if complying with a new state legal obligation forces the institution to breach binding contracts, federal requirements, or ethical codes, the board may have justification to resist compliance.

Institutional Harm Assessment: A Rubric for Evaluating the Degree and Type of Harm from a Potential Intrusion

Academic harm

Loss of accreditation
Infringement on academic freedom
Damage to research capabilities or federal funding requirements

Financial harm

Significant cost burdens
Jeopardizing federal grants, research dollars, students’ Pell Grant eligibility, and so forth

Operational harm

Inability to operate programs required for students’ degree pathways
Loss of key personnel, faculty members, or students

Reputational harm

National or international damage affecting enrollment and philanthropic support

Implications:

If harm is moderate, negotiation or phased implementation may be possible.
If harm is severe (for example, loss of accreditation), strongly consider resistance or a legal challenge.

Decision Pathway: When to Comply, Negotiate, Stall, Resist, or Refuse
Comply when: The law is valid, enforceable, and implementable. Harm is minimal or manageable. Compliance does not violate federal law or accreditation.
Negotiate when: The law is ambiguous or burdensome. Implementation details are unclear. There is room for interpretation or phased compliance.
Stall (delay or request clarification) when: Regulations are pending. Legal challenges are already underway. Compliance deadlines are unreasonable or operationally harmful. Compliance might violate federal standards but clarification is forthcoming.
Resist or challenge when: There are strong constitutional or federal conflicts. Compliance would cause severe institutional harm (involving accreditation, federal funds, safety). The law contradicts contractual obligations or federal requirements.
Refuse to comply only when: Compliance would be illegal, unconstitutional, or operationally impossible; and Legal counsel indicates that noncompliance is defensible while pursuing judicial relief.