Legal Standpoint: Lawyers as Guardians of the Mission

By Steve Dunham    //    Volume 26,  Number 4   //    September/October 2018

In a previous column examining the “multiple hats” that college and university lawyers wear, I outlined “protector of the mission” and “defender of institutional values.” These roles are particularly important at a time when many are raising questions about the value of higher education. This column explores how higher education lawyers can help defend and promote the mission and values of colleges and universities and respond to the perception of the decline of higher education as a public good.

  1. Service. Colleges and universities are in the service business—service to students through teaching, service to society through research, and service to the communities in which they operate. Lawyers, too, are in the service business. Most importantly, they serve their college and university clients and related missions. In the higher education lawyer’s day-to-day work—from addressing legal issues associated with student safety to protecting academic freedom, complying with legal and ethical obligations, and supporting the “business” of the institution—lawyers help their clients serve the public good.
  2. Economic development. Colleges and universities create knowledge, jobs, and new businesses, and lawyers are instrumental every step of the way. They help protect and disseminate intellectual property, create legal instruments and strategies to finance growth and development, and work on the contracts that are part of any economic transaction. In all these ways, lawyers help colleges and universities provide tangible economic benefits to society.
  3. Freedom of speech. Colleges and universities are, by their very nature, the prototypical marketplace of ideas—in the classroom, in research, and in the public square. By providing advice, developing policies, training employees, educating students, and litigating disputes, lawyers play a critical role in supporting efforts by colleges and universities to protect and promote freedom of speech. Groups and individuals (and governments) may differ on the scope and meaning of the First Amendment or on the proper balancing of other interests, such as security and inclusion. Yet no sector of our society does more than colleges and universities— and their lawyers—to promote freedom of speech as a core constitutional and societal value. This is a public good of the highest order.
  4. Inclusion, diversity, and nondiscrimination. Issues of race, gender, disability, religion, and other individual and cultural classifications permeate society. Not surprisingly, they pervade colleges and universities as well. These issues arise on campus in a wide variety of contexts, including many that are defined by law or have legal implications: employment discrimination, affirmative action in admissions, Title IX, sexual harassment, the Americans with Disabilities Act, immigration, political activities, and many others. By helping colleges and universities navigate through the legal and cultural divisions on campus and in society, college and university lawyers help their institutions serve the public by promoting the institutional and societal values of inclusion, diversity, and non-discrimination.
  5. Democratic values. Through their core mission of education, colleges and universities help create an informed public and promote democratic values. Lawyers can play a special role in the legal aspects of this fundamental mission. In addition to freedom of speech and equal protection, as noted above, lawyers advise colleges and universities on other constitutional issues such as due process in a variety of contexts, including employment. Further, in working on issues of compliance, lawyers necessarily advise on state and federal laws and related issues of integrity and ethics. By counseling on constitutional issues, compliance, and adherence to the rule of law, lawyers help colleges and universities promote democratic values in ways that are essential to the mission of higher education.

Central to the fiduciary duties of governing boards and senior executives is the obligation to protect and promote the mission and values of their institutions. College and university lawyers can and should be full partners in this important work.

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