Legal Standpoint: Hot Topics in Higher Education Law

By Steve Dunham    //    Volume 30,  Number 3   //    May/June 2022

Every college or university general counsel has a list of hot topics useful for preventive law, risk management, compliance, training, and other purposes. The following is one such list based on recent educational programs, conversations among higher education lawyers, and the legal press. I have framed each topic in a somewhat provocative way to try to capture why the topic is of public interest.

1. Do boards and administrators infringe on the traditional role of faculty in shared governance? The meaning of shared governance is in the eye of the beholder, but for faculty, it frequently means their right to determine certain academic matters, such as the curriculum, and their right to be consulted on other matters, such as educational policies. In recent years, shared governance disputes have arisen over tenure, political interference, and COVID-19 policies. Shared governance may be established in institutional governance documents and can, in some instances, have contractual and legal effect, though the governing board generally would have the right to change such documents.

2. Do recent federal and state executive and legislative actions constitute threats to institutional and faculty academic freedom? From the Trump administration’s executive order on diversity training to recent state legislative and executive attempts to prohibit or regulate how race is taught in schools, some recent governmental efforts to dictate what is taught are viewed by many in the academy as infringing on the academic freedom of institutions and faculty. The legal issues include First Amendment considerations and institutional autonomy.

3. Are colleges and universities so politically liberal that they chill freedom of expression rights of conservatives on campus? As the cultural divide deepens, legal disputes arise in connection with controversial speakers, funding of student organizations, student discipline, and faculty comments in the classroom.

4. Is there too much foreign influence (in particular, from China) in our institutions of higher education? Particularly for major research institutions, the federal government’s various initiatives relating to foreign influence (Section 117 of the Higher Education Act of 1965, conflicts of interest, criminal prosecutions) create legal tensions on campus.

5. Do institutional attempts to achieve diversity, equity, and inclusion go too far and constitute discrimination? Or do institutions not do enough and effectively perpetuate institutional racism? The Supreme Court cases involving Harvard University and the University of North Carolina may rewrite the law on race-conscious admissions. There has also been increased regulatory attention to single-sex programs and gender and race-exclusive scholarships. At the same time, many colleges and universities have undertaken efforts to address what many acknowledge to be institutional and structural racism.

6. In enforcing Title IX, does the institution properly balance the rights of victims and respondents? Federal guidance, regulations, and enforcement have changed back and forth, leaving many institutions uncertain about the applicable rules.

7. When do the unfunded costs of excessive government regulation interfere with higher education’s research mission? Some think we are once again on an upward trend in burdensome compliance costs.

8. Is name, image, and likeness (NIL) the Wild West? For schools with Division 1 athletic programs, it has become commonplace to complain that there is, effectively, no NIL law. Without rules, what is the need for or the role of lawyers? Before you start celebrating, ask yourself this: In a world without law, what is the control on money and power?

9. Do colleges and universities owe students a legal duty to protect them from the dangers of campus life (e.g., Greek Life, crimes on campus)? Sexual misconduct cases with liability in the hundreds of millions of dollars have hit several institutions.

10. Is tenure sacrosanct? At its core, tenure is a legal contract with a very high definition of “cause.” In a time of disputes over COVID- 19 policies, the First Amendment, race, gender, and claims of retaliation, there have been several high-profile cases where institutions have denied or sought to revoke tenure. These instances cause re-examination of an institution’s tenure policies and lead to expensive litigation

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

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