Legal Standpoint: Post-Election Changes in the Law

By Steve Dunham    //    Volume 25,  Number 2   //    March/April 2017

Along with everyone else, college and university lawyers are trying to figure out the landscape for their clients in the post-election world. This involves a pinch of lawyering, a big spoonful of advice from government relations experts and higher education associations, a cup of informed good judgment, and a hefty dose of flat-out guesswork. Truth is, many of the actual legal changes are unknown, and their effects on colleges and universities are even more speculative. Nevertheless, trying to predict the future is fun and important, and everyone is doing it, so here is my take from a legal perspective.

First, many laws apply to all “persons,” whether individuals, corporations, nonprofit, or governments. Other laws and regulations apply to colleges and universities uniquely because they receive governmental funding—most importantly, federal funding. Institutions that participate in federal student loan programs or are parties to federal grants and contracts are subject to hundreds if not thousands of legal requirements by virtue of receiving that federal funding. We need to consider possible changes in both general and higher education-specific laws.

Second, there are many sources of “law.” In addition to legislative and regulatory changes, there will be changes in judicial interpretations of federal statutes and the Constitution that may result from new Supreme Court appointments, changes in government enforcement priorities that affect legal rights and obligations, legal developments caused by changes in economic conditions that result from actions of the new administration, and new regulatory guidance from federal agencies that reflects changes in policies and leadership.

The National Association of College and University Attorneys (NACUA), in cooperation with many of the D.C.-based higher education associations, recently sponsored a program that identified several areas where post-election legal change is expected. Those areas include: immigration (including Deferred Action for Childhood Arrivals, or DACA); tax reform (changes in charitable giving or regulation of endowments); repeal of and/or changes to the Affordable Care Act; changes in the Department of Education and the laws it enforces (Title IX, Clery); budget levels and priorities that change the law by adding or subtracting resources for programs and enforcement; campus climate and First Amendment issues caused by changes in law and policies; union issues; web accessibility; Fair Labor Standards Act (overtime pay); research regulations (innovation, infrastructure, healthcare, climate change, stem cells, human subjects); and student financial aid (Higher Education Act).

To this list, I might add: an increase in private student and employment litigation as a result of a possible decrease in government enforcement; increased use of public-private partnerships, particularly in infrastructure projects; an increase in whistleblower lawsuits under laws the new administration may choose not to enforce; changes in compliance obligations resulting from shifting funding priorities (for example, a possible increase in regulatory compliance related to defense, national security, big data, and privacy funding); and increased attention by federal auditors to issues of cost overruns, fraud, and abuse.

In light of the legal changes that are likely to be or in fact are implemented as a result of changes in Washington, boards might consider scheduling briefing sessions with lawyers and administrators to learn about developments and discuss contingency planning. In this respect, it is important to distinguish between what colleges and universities are required to do and what they may do within the law. For example, some have predicted that the new administration might roll back some of the regulations, guidance, or enforcement efforts under Title IX relating to sexual misconduct. But changes in law or enforcement priorities do not necessarily require changes in practice. New “laws” and changes in federal enforcement efforts may provide more flexibility but they may not require colleges and universities to change their polices and practices. Consistent with the law, boards and institutions can choose to do what they believe is right and in their best interest, even if certain policies and practices are no longer legally required.

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