Legal Standpoint: In the Shadow of the Law

By Steve Dunham    //    Volume 30,  Number 2   //    March/April 2022

“In the shadow of the law” describes actions that are undertaken by private parties, including individuals and entities, which are influenced by the law but which are not themselves “laws” such as court decisions, legislation, or regulations. Examples include settlements and contracts. Such private ordering in society reflects the broad scope of the law to influence much of what we do in our work and private lives, including in higher education.

The “shadow of the law” helps explain how the “law” influences a broad range of activities on campus. Because most of these activities and related decisions are undertaken by nonlawyers, frequently without the benefit of legal advice, it also underscores why an understanding of legal principles and standards is helpful for university leaders. This column identifies five categories of activities on campus that take place in the shadow of the law.

  1. Policies and procedures. Internal college and university policies are the internal law of an institution. (See “Policies and the Law,” Trusteeship, September/October 2019). Policies may create legal rights and obligations and establish guidelines and processes for decision-making. Examples include employment policies, such as an employee handbook, and policies regulating student conduct, such as the student conduct code. Administrators, faculty, and staff make decisions every day that are based on their understanding of institutional policies. There is no court or other legal authority telling the decision-maker what to do. Rather, they act in the “shadow of the law” created by institutional policies.
  2. Fiduciary duty. Fiduciary duty is a legal standard. (See “Fiduciary Duty is the Law,” Trusteeship, November/December 2017.) It is legally enforceable against board members and others who owe such duties to the institution. It is an objective standard of reasonableness, not defined by the board member’s personal view of what is right. However, short of a legal dispute, which is rare, board members exercise their fiduciary duties based on their own personal judgments. As such, right or wrong, they act in the “shadow of the law.”
  3. Contracts. Colleges and universities enter into hundreds if not thousands of contracts every year. In addition, the relationships of employees and students with the institution may create contractual duties and obligations. The college or university may or may not consult with a lawyer about significant contracts but employees who negotiate or sign contracts necessarily make certain assumptions about the law. What duties and obligations does the contract create? In the event of a dispute, how will the language be interpreted by a court? These decisions are influenced by the individual’s understanding of what the law requires and are thus under the shadow of the law.
  4. Academic freedom, shared governance, and core values. These fundamental academic principles are intertwined with the law. Institutional leaders, faculty, and others rely on these principles to make academic decisions and guide their teaching, research and service. When they do so, they are implicitly acting with reference to the legal standards embedded in the core values. How does the First Amendment relate to academic freedom? What is the legal basis of the institution’s core values? (See “Culture, Core Values, and the Law,” Trusteeship, November/December 2021.) What is the legal meaning of shared governance?
  5. Issues from the cultural divide, including race and gender. Institutional decisions and activities related to cultural issues are at least partially based on legal Think Title IX (gender), Title VI (race), Equal Protection Clause, First Amendment, affirmative action, and diversity (Supreme Court cases on race), etc. Boards and senior leaders should have a good understanding of these laws so that their decisions and oversight, made in the shadow of the law, properly reflect legal history, principles, and requirements.
  6. COVID-19. College and university leaders regularly make decisions about how best to manage COVID-19 on campus in light of legal requirements—state and federal mandates, employment law, privacy, liability, and Institutions develop and implement public health and safety practices with reference to these legal requirements, even if only implicitly. As such, the shadow of the law affects most major institutional decisions relating to COVID.

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

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