After six years, this is my last “legal” column for Trusteeship. Rather than looking back at the significant historical changes in the practice of higher education law over the five decades since I started work, first as a law professor and subsequently as a university general counsel at three different institutions, I attempt here to describe recent trends and predict the future.
1. Most changes and trends are driven by changes in substantive law. Consider the recent and still developing changes in the law of Title IX, affirmative action, First Amendment protections of speech and religion,
foreign influence (Section 117, export controls, national security, immigration), privacy, duties to students, remote working, safety (including environmental and dangerous individuals), and the law of diversity, equity, inclusion, and discrimination.
2. Each of these and other substantive law changes require college and university lawyers and their clients to adjust to new and changing legal standards, increased enforcement, increasing costs, more government oversight, greater complexity, change management, risk management, compliance, crisis management, increased litigation, more lawyers, greater specialization, additional policies, and so on. One could write a book about each change in substantive law and the changes each causes in the practice of higher education law.
3. There is no reason to think these trends and changes are static or will subside. The arc of history may bend toward justice, but the arc of the law bends toward change, expansion, and complexity.
4. Many other recent changes and trends in higher education law practice are driven not by substantive law, but by changes in the “business” of higher education, including topics, buzzwords, and such concerns as efficiency, accountability, organizational structures, data-driven decisions, cost-benefit analyses, cost cutting, revenue enhancements, information technology, an ever-expanding list of consultants, centralization, the growing authority of the president, activist governing boards, preoccupation with public relations, and deference to the politics of the moment.
5. As with changes in substantive law, each of these organizational and process or business-related changes leads to changes in the practice of higher education law. Specifically, there is (and will be) more focus on administrative authority and less on mission and shared governance, more attention to costs and revenues and less to academic excellence and student outcomes, more resources and attention spent on marketing and publicity and less on the merits, more focus on central administration and less on faculty and students, and other changes that make colleges and universities more like profit-oriented businesses and their higher education lawyers more like corporate counsel protecting the interests of corporate executives and the bottom line.
6. While many of these changes will continue and some are necessary, there is among the higher education bar an increasing focus on the educational and nonprofit mission as the ultimate client. College and university lawyers have a strong and growing commitment to the public interest, to public service, and to the Rule of Law. Asked “who is the client,” many higher education lawyers, at least among themselves, say their duty is to the mission and values of the institution.
7. In sum, changes in substantive law will accelerate and will affect the practice of higher education law, but these changes need not detract from the lawyer’s service to the educational mission of the institution. Indeed, changes and trends in the law affecting faculty and students, such as freedom of speech; the law related to diversity, equity, and inclusion; and principles of citizenship and good governance that are embedded
in the Rule of Law, can empower lawyers to redouble their commitment to serve their clients’ educational mission of teaching, research, and service. And although there are and will be understandable counterpressures to be businesslike and to consider PR, financial, and political interests, institutions are, nevertheless, well advised to listen to their lawyers and to enlist them on the side of protecting their unique and important educational mission. Higher education lawyers want to and can help sustain colleges and universities as a public good.
Steve Dunham, JD, is a lawyer for Penn State University. Email: ssd13@psu.edu.
Editor’s Note: AGB wishes to thank Stephen Dunham, our stalwart “Legal Standpoint” columnist since 2019. Steve’s insights and clear writing about the complex legal challenges that institutions face have helped enlighten and empower higher education leaders during a time of rapid change for universities and colleges. Personally, as a still fairly new editor in chief of Trusteeship, I have found Steve to be a reliable and welcoming colleague. Thank you, Steve, for your outstanding work for AGB. —CS
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