Legal Standpoint: Change and the Law on Campus

By Steve Dunham    //    Volume 29,  Number 2   //    March/April 2021

Change is generally considered a good thing. New administrations in Washington trumpet the initiatives they intend to implement in the first 100 days. Annual goals for executives are plans for change. The concept that a “crisis should not be wasted” (attributed to Winston Churchill) suggests that even crises can create conditions for constructive change. “Change management” is a recognized leadership skill.

Constructive change at a college or university can affect all parts of the institution’s operations, including governance, strategic plans, policies and procedures, students, faculty, compliance, risk management, and even the mission. Recent initiatives announced by higher education leaders include plans for addressing racism and increasing diversity, climate change and sustainability, cost cutting, revenue opportunities, access and affordability, student safety, culture, and core values.

What does change have to do with the law? No one person or office “owns” institutional change. But the law and lawyers are at the center of change at colleges and universities.

  1. Acknowledging the many caveats and exceptions, nevertheless, in understanding how law affects change, it is important to recognize the scope of how the law affects institutions. This includes understanding that “law” on campus includes (a) statutory, regulatory, and judicial rights and duties (which are interpreted and applied by lawyers and the legal system), (b) private ordering of relationships (contracts and entities), (c) policies, procedures, customs, and practices that define behavior, d) public policy and ethics that determine rights and responsibilities, (e) faculty and other employment contracts, (f ) institutional duties to students, and (g) the institution’s mission, core values, and culture that define legal relationships and duties.
  2. The law and lawyers “own” a significant part of the tools of Consider the simple case of a statute, regulation, or judicial interpretation that requires an institution to do X. If the institution wants, instead, to do Y, it must “change” the law or argue that the law does not really require X but that, properly interpreted and applied, Y is ok. If the argument is to be made in court, lawyers are required. If the desired outcome requires a change in legislation or regulation, lawyers are useful or necessary in drafting, interpreting, and applying new legal language. If the change can be accomplished only by engaging with a third party—for example, convincing a counter- party that a contract means Y rather than X—again, lawyers can be useful or necessary in negotiating the “change.” Take this simple example and multiply it by the legal activities identified in paragraph 1, above, and it becomes clear that the law and lawyers are at the center of change on campus.
  3. In addition to assisting constructive change on campus, the law and lawyers also help institutions avoid mistakes that make change more difficult. One of a lawyer’s core duties is to provide advice and counsel about the risks of change. This role can be misunderstood as impeding change and it causes some to characterize lawyers as negative or risk-averse. Properly understood, however, this proactive role can help an institution avoid or mitigate risks, make good decisions, and protect its reputation. This positive legal role facilitates the desired change with the fewest negative consequences and the best opportunity to succeed.
  4. The law and lawyers are central to the changes required for colleges and universities to address the major challenges currently faced by higher education. A partial list of these challenges includes: Addressing issues of racial injustice [See “Racism and the Law on Campus” in Trusteeship, November/December 2020.], Changes resulting from the new administration in Washington, which will likely include attention to sustainability and climate change; rollback of Title IX regulations; rescission of immigration rules; and changes related to federal funding and financial aid, and (c) Responding to financial pressures, including cost cutting, mergers, and All of these challenges have significant legal components.

Board members and senior executives should consider their lawyers’ roles as change agents as they make plans to strengthen their institutions for the future.

Steve Dunham, JD, is the vice president and general counsel for Penn State University.

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