Why should college and university board members and senior leaders care about the law and how it affects their institutions? The reasons range from the very principles on which our constitutional government is based to the more mundane day-today necessities of running an educational institution.
1. The Rule of Law is one of the fundamental precepts of our constitutional and democratic form of government. The Rule of Law is a set of principles under which individuals and organizations are subject to laws that are equally and fairly applied in the interest of an orderly and just society. (See “The Rule of Law,” Trusteeship, September/October 2020). College and university leaders should understand the importance of the Rule of Law for real life issues on campus such as freedom of speech, the rights of minorities, and individual autonomy.
2. Because of their educational mission, colleges and universities have a role not just to follow the Rule of Law but also to teach students the principles and core values on which it is based. In and out of classrooms, higher education helps develop “citizens” who live by the Rule of Law, including helping students understand such fundamental values as truth, respect for others, human rights, and privacy. (See “Culture, Core Values, and the Law,” Trusteeship, November/December 2021).
3. Colleges and universities are legal entities that, along with individuals, private corporations, and other forms of business, are subject to federal, state, and local laws because they operate in a jurisdiction. Also, almost all higher education institutions receive government funding (student financial aid, research grants) that is conditioned on compliance with applicable laws. And, most colleges and universities are not-for-profit entities or government instrumentalities that enjoy the privilege of not paying taxes conditioned on their legal
obligations to operate in the public interest. For all of these reasons, colleges and universities are subject to literally thousands of laws in their day-to-day operations. For a college or university in the 21st century, compliance with the law is simply a necessary part of doing business. (See “Compliance Policies and the Law,” Trusteeship, March/April 2019).
4. One definition of law is public policy that can be enforced. The law should matter to college and university leaders because it reflects the great public policy issues of the day that have a direct impact on campus life. Just within the last few months, the U.S. Supreme Court has addressed or will address this year such issues as abortion, climate change, guns, religious freedom, and affirmative action, all of which have significant effects on college and university campuses.
5. Higher education law involves a unique set of legal issues that constitute the core functions of colleges and universities. Consider, for example, the following:
a. Tenure is a unique contract, which defines the legal relationship between the institution and its faculty.
b. Academic freedom is a principle (actually, a policy at most institutions) that is in part defined by the law of the First Amendment and may have contractual implications.
c. Institutions owe legal duties to students arising out of activities as diverse as Greek organizations, intercollegiate athletics, student organizations, campus safety, and sexual misconduct. College and university leaders should understand these legal principles as part of their fiduciary duties.
d. Constitutional issues, including free speech and due process, have special legal application on campus in the form of classroom speech, controversial speakers, demonstrations, and the like.
Good judgment and decision-making are necessary attributes for leaders at colleges and universities. There is nothing uniquely “legal” about these skills. However, to the extent the law permeates much of what colleges and universities do, as described above, the law should matter to senior leaders and board members whose jobs include exercising good judgment and making decisions about subjects that necessarily include legal principles and have legal consequences. Board members and senior executives make better decisions, exercise more informed judgment, and provide more effective leadership in service of the institution’s mission if they recognize that the law matters, and they are knowledgeable about the legal issues affecting their institutions.
Steve Dunham, JD, is a lawyer for Penn State University.
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