Legal Standpoint: Changing Roles of Higher Education Lawyers

By Steve Dunham    //    Volume 28,  Number 1   //    January/February 2020

Today lawyers on college campuses have an expanded role compared to what their jobs were like in past decades. (See also a previous column that discussed the evolution of the college and university lawyer’s job and the “multiple hats” they wear in the Trusteeship summer 2018 issue). There are several professional and educational trends that have caused this significant expansion of the role of law and lawyers on college and university campuses that boards should know as they consider legal aspects of institutional governance.

1. Substantive law. The substantive law applicable to colleges and universities has undergone explosive growth. This expansion in the sheer number of laws has been driven by federal laws and regulations (that are conditions of federal grants) and contracts and on federal student financial aid; the growth of anti-discrimination laws; legal issues associated with the commercialization of higher education; and new or expanded areas of law such as data privacy and Title IX.

2. Leadership. Lawyers are increasingly expected to take on leadership roles. This is in part due to the growing importance of legal rights and obligations, but it is also because lawyers have training and experience in areas such as decision making, good judgment, team building, advocacy, and supporting the institutional mission and values.

3. Social and cultural changes. Colleges and universities are ground zero for hot button issues of law and policy such as freedom of expression, sexual harassment, affirmative action, immigration, mental health, and other current topics. These are not, of course, new issues, but they increasingly create new legal challenges.

4. Complexity. Colleges and universities face new legal challenges that result from the growing complexity of their operations, including international activities, commercialization, subsidiaries and affiliates, and governmental and community relations.

5. Expectations. Changes in the role of lawyers in the corporate world cause college and university boards to expect more of their lawyers. This includes legal issues related to oversight by board members, fiduciary duties, misconduct by senior officials, conflicts of interest, and other legal stresses on corporate governance.

6. New institutional functions. Whole new institutional functions have grown up that have significant legal implications and simply did not exist in decades past, including ethics and compliance, enterprise risk management, and crisis management.

7. Changes in the higher education business model. As a result of economic and budgetary changes, colleges and universities are increasingly asked to “act like a business,” which leads to new revenue models, cost cutting, lay-offs, new “product” lines such as online education, tech transfer, for-profit subsidiaries, and other developments which by their nature are lawyer intensive.

8. Policies. Colleges and universities are increasingly focused on best practices, transparency, accountability, processes, and procedures. These developments lead to the growth of internal policies, which create legal standards, rights, and responsibilities. Policies are internal law, and lawyers play a critical role in the development and management of college and university policies. Policy development also includes growth in lawyering related to preventive lawyering and training to ensure compliance with policies and legal obligations.

9. Mission and values. Colleges and universities are increasingly focused on adhering to and furthering their mission and ensuring that their actions comply with their core values. These efforts are critical in responding to the challenges caused by declining public support for higher education, institutional crises, the need to justify tax and gift dollars, and protecting nonprofit and public status. Many of these challenges are legal in nature and institutional responses benefit from legal advice.

10. The return of “in loco parentis.” There is a gradual but unmistakable growth in the duties the law imposes on colleges and universities to protect the safety of students, minors, employees, and others who attend or work at our institutions or whom we serve. This is evident in regulatory creep and in the expansion of tort law duties such as negligence and other claims that arise from Greek Life, minors on campus, and other activities.

11. Decline of deference. Courts, legislators, and regulators increasingly do not defer to college and university decision makers, which increases regulatory oversight and judicial intervention.

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

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