- The scale and impact of the legal issues bearing down on institutions and their campuses have reached unprecedented levels. An upward trend toward increased litigation began in the early 2000s. This trend has come to define operations on campuses as it relates to preparing for and managing litigation as well as overall litigation risk awareness.
- Recent legislation that directly and indirectly impacts higher education has been enacted, proposed, or seriously considered at both state and federal levels includes a broad array of topics including transcript ransoming, legacy admissions, weapons on campus, restricting spending on diversity, equity, and inclusion (DEI) initiatives, banning DEI curricula, taxing university endowments, and various issues related to athletics.
- There are more lawyers on campuses than ever. Due to the changing regulatory and litigious environment, there has been a marked increase in the number of lawyers employed on campuses as well as the number of lawyers and support staff who spend all or most of their professional time working on academic, legal, and regulatory matters.
- Regardless of an institution’s chosen solution for meeting legal needs, it is essential that legal counsel have a deep understanding of the higher education sector. Counsel to colleges and universities must appreciate how each constituent part—student, parent, faculty, staff, alumni, local community—feeds into the whole. They must also understand how quasilegal concepts such as shared governance, academic freedom, and academic deference play a role, must be able to explain these concepts to fiduciaries, and must understand institutional values.
Author’s Note: My recent book with Joyce Jacobsen entitled All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education (Harvard, 2024) tells the story of the current and trending legal controversies embroiling American higher education and their evolution over the last several years. This piece incorporates excerpts, insights, and adaptations from All the Campus Lawyers and my other work to accomplish three goals: (1) raise awareness for fiduciaries in and around the leading legal issues and headwinds in the sector today, (2) frame for trustees the strategic and operational questions institutions are faced with in navigating these headwinds, and (3) get trustees thinking about the pressure points between the current legal and regulatory strictures and trends and the core mission of higher education.
Due to the changing regulatory and litigious environment, there has been a marked increase in the number of lawyers employed on campuses. Regardless of an institution’s chosen solution for meeting legal needs, it is essential that legal counsel have a deep understanding of the higher education sector.
On almost a daily basis the higher education news is filled with stories related to legal complexities in some form or other on campuses nationwide. Nearly every morning trustees, presidents, and administrators review the higher education news to read about a new high-profile lawsuit, a debate over free speech, a contract dispute with a president or coach, a governance squabble, a set of new regulations or guidance, or a new proposed legislation that would require institutional compliance.
The Current Environment: Litigation, Regulation, Public Scrutiny
Before reviewing specific substantive legal and regulatory trends campuses are facing, it is useful to consider some macro trends as they relate to the higher education sector more broadly. These trends provide important insight into the impact of the specific legal and regulatory shifts I will discuss by subject area, and they are interrelated. Specifically worth pointing out are the trends in public attitudes toward higher education, volume of litigation, and shifting regulation.
Recent survey data reveal a concerning trend: that public confidence in higher education is on the decline. Gallup reported in 2023 that overall confidence in higher education is down to 36 percent from 48 percent in 2018.1 In 2015 public confidence in higher education was as high as 57 percent. Major headlines also regularly assail both the value and virtue of college. A 2023 New York Times headline proclaimed: “Americans are Losing Faith in the Value of College.”2 A recent piece in the Wall Street Journal touts a billionaire’s plan to offer compensation to those willing to skip college entirely.3 Some commentators cite rising tuition as contributing to the public opinion struggles, insinuating a relationship between increased costs of attendance and the perception of dubious outcomes that is too stark to ignore completely.4 In all, Americans appear less confident in higher education as a sector and more wary of its rising cost. It is no surprise then to see an increased propensity for students, parents, employees, and other stakeholders to litigate. Nor is it a surprise to note lawmakers are more eager to step in and regulate. It is against this backdrop of public skepticism and rising costs that the litigation and regulatory trends are best observed.
Figure 1: Cases in Lexis and Westlaw with a University or College as Party, 1900–20216
Data sources: Lexis; Westlaw
It is no exaggeration to say that in this first part of the 21st century, the scale and impact of the legal issues bearing down on institutions and their campuses have reached unprecedented levels. As illustrated by Figure 1, a basic search of the two main legal case databases revealed that the number of cases in these databases that involve a college or university as a party has increased steadily over the last hundred or so years. Other scholars have also noted empirical trends showing that lawsuits involving key federal statutes such as Titles VI, VII, IX, and the Americans with Disabilities Act (ADA)—statutes that figure prominently in the workings of higher education—have been on the rise since the 1960s.5 Indeed, observers often cite the 1960s as the advent of higher education’s broader involvement with the courts and government regulation. But in the early 2000s higher education would begin to see an upward trend in litigation unlike any previously seen throughout the history of the sector. This trend has come to define operations on campuses as it relates to preparing for and managing litigation as well as overall litigation risk awareness. The regulatory and legislative trends are also noteworthy and are likely familiar to fiduciaries. The last decade or two have brought increased involvement from the executive branch in the form of executive orders, which have seemingly now become commonplace for higher education. These executive orders influence not only direct action on the part of institutions but also compel important action on the part of key agencies regulating higher education by requiring or influencing further regulation. Significant executive orders for higher education from recent presidential administrations include those related to issues of campus free speech, educational equity, gender identity and sexual orientation, antisemitism, and immigration.
Legislators at both the federal level and across traditionally red and blue state lines have pursued significant pieces of legislation compelling action or compliance from institutions of higher education. Recent legislation that directly and indirectly impacts higher education has been enacted, proposed, or seriously considered at both state and federal levels includes a broad array of topics including transcript ransoming, legacy admissions, weapons on campus, restricting spending on diversity, equity, and inclusion (DEI) initiatives, banning DEI curricula, taxing university endowments, and various issues related to athletics. Given the cost of higher education and public skepticism, it is no surprise that legislatures seem more likely to take a hands-on approach in the sector despite many decades spent doing the opposite.The sections that follow discuss trending legal controversies by subject area that should be known to trustees and understood in their capacity as fiduciaries.
Civil Rights on Campus
At the top of the list of campus civil rights concerns over the past 10 to 15 years is Title IX. From its passage in 1972, the enforcement of Title IX’s prohibition of discrimination on the basis of sex has evolved through a series of detailed guidance documents and regulatory shifts. This has culminated most recently in new regulations released in April 2024. Title IX litigation has also evolved significantly, with courts disagreeing over key aspects of the legal standards related to lawsuits under the statute. Counsel for colleges and universities are often involved in drafting policy changes, giving process advice, or managing litigation.
Other civil rights laws have continued to gain significant prominence on campus and also require the sustained attention of general counsel. Title VI and its prohibition against discrimination on the basis of race, color, or national origin (including shared ancestry) in programs receiving federal funds is also important on college campuses. Sadly, instances of antisemitism and islamophobia on campuses nationwide have brought recent attention to this statute. The recent investigation and findings of the Department of Education related to antisemitic incidents at the University of Vermont are an example.
Issues related to the ADA have continued to increase on campuses in recent years. The breadth of the ADA on campus is considerable, and its reach often extends to issues including the use of service animals, academic accommodations, and physical campus accessibility. Involuntary separations of students also implicate ADA considerations and can be an area of focus for institutional counsel supporting student affairs and campus life professionals. Like other employers, the higher education sector is also bound by Title VII, which prohibits discrimination in employment on the basis of several protected classes.
Free Speech and Academic Freedom
Free speech controversies have been pervasive on campuses for some time but have continued to accelerate and evolve of late. The recent unrest on campuses over the ongoing war in Gaza have brought to the fore key tensions at the intersection of the values of free speech principles and academic freedom. Moreover, campuses have been challenged by novel fact patterns that continue to blur the lines between protected speech and expression and conduct that may constitute actionable harassment. The Department of Education has made clear that conduct that might be protected in a strict First Amendment sense can also contribute to a hostile environment and require action by the institution.7 Institutional leaders have an obligation to investigate and take corrective action where they knew or should have known of a hostile environment or harassment. Protest techniques such as those employed by demonstrators establishing encampments across college and university campuses in 2024 have challenged the effectiveness, limits, and overall utility of campus policies around time, place, and manner for demonstrations and protest.
Campus counsels are often called on by administrators and fiduciaries as thought partners for understanding the legalities and formulating responses to specific speech or expression issues. Legal counsel should be versed in the literature, history, and institutional policies on academic freedom and understand its relationship to free speech protections as a legal matter. In another recent example, the case of Meriwether v. Hartop became the focus of the higher education press when the Sixth Circuit Court of Appeals, relying in part on academic freedom constructs, upheld the right of the professor in that case to refuse to use preferred pronouns. The legal and doctrinal principles that apply in such a scenario are highly nuanced. While most cases like this do not often proceed this far in litigation, legal counsel are often called upon to provide guidance to senior administration in such scenarios and advise on overall strategy in light of the law, institutional policy, and values.
Student Life
The rising cost of college has arguably led to greater expectations from the students and parents footing the bill. It has raised the stakes for institutions seeking to deliver on their promises to students. It is unsurprising then that almost all facets of student life on campus have now become legal flash points in some respect:
- College athletics have become more complex. This is especially true since the Supreme Court’s decision in NCAA v. Alston, which opened the door to legal challenges related to the treatment of athletes as employees, unionization of student athletes (and student employees), and complexities related to name, image, and likeness.
- Student mental health concerns have raised novel questions of liability for institutions of higher education. Courts have recently grappled with questions of liability for institutions when they fail to act—or are alleged to have acted insufficiently—in and around issues of student suicide.
- Greek life has continued to present thorny liability questions for campuses. Professionals in this area are regularly faced with questions about whether certain interventions or protocols are too intrusive and therefore might give rise to legal obligations or duties; or, too hands off and yet still likely to trigger liability.
- Study abroad and other off-campus study programs present unique institutional risk. In a changing geopolitical landscape, institutions are faced with serious questions over which programs to allow or not allow. And recent cases have looked at institutional duties that have been created or assumed in the study abroad context.
When it comes to students and campuses another global observation must be stated: courts and juries seem less likely to be deferential to higher education. Doctrinally, courts have evolved from traditional notions of either in loco parentis—and its implied trust that institutions always make the right decision—to complete non-involvement, taking a more skeptical and monitoring approach to higher education institutions’ interactions with students. Deference, both as a legal doctrinal matter and as it relates to the court of public opinion, seems to be waning. Courts are more likely to find that an institution has a duty of care in a particular situation and thus allow cases against institutions to proceed beyond initial motions to dismiss.
Still More Issues…
There are a multitude of other rapidly evolving legal controversies facing colleges and universities that are deserving of the attention and inquiry of fiduciaries. These include issues related to college admissions, including those stemming from Students for Fair Admissions, Inc. v. Harvard, issues related to institutional advancement and giving, such as gift acceptance or naming issues, and legal issues arising with local municipalities and communities, such as real estate issues or payment in lieu of taxes (PILOT) arrangements. Governance matters and controversies—ranging from shared governance disagreements to tenure denials to board member misbehavior—are also areas where general counsel generally partners with the governing boards or senior leadership to develop actions and responses and are areas where fiduciaries should be fluent. Relatedly, demographic and economic shifts in the higher education sector have spurred innovative and novel ventures that often require legal attention. Mergers, acquisitions, closures, shared service arrangements, consortial contracting, and group purchasing are all evolving areas for campus lawyers at institutions of all shapes and sizes.
Operational Considerations
All of these trends and headwinds have led to an increase in the number of lawyers employed on campuses as well as the number of lawyers and support staff who spend all or most of their professional time working on academic, legal, and regulatory matters. Data compiled by the Chronicle of Higher Education between 2010 and 2019 show steady increases in the number of listings for office of general counsel jobs during that period, with the number of job ads posted more than tripling between 2010 and 2018. The National Association of College and University Attorneys (NACUA)—the primary professional association for lawyers serving higher education—has grown significantly since its inception in the 1960s, with considerable recent growth. In 1985 the total number of members of NACUA was 2,400. By 1997, that number increased modestly to 2,762. By 2022, the total number of members of NACUA was 5,050, of which 3,849 were exclusively in-house counsel.
In light of the increased legal pressures, regulatory burdens, and public and legislative scrutiny facing the higher education sector, attention has also focused directly on those engaged to help advise on and manage these issues: the campus lawyers themselves. From claims that lawyers can have an outsized role in institutional operations8 to claims that they can have a domineering influence over institutional communication strategies,9 conversation has resultingly centered around the so-called proper role of campus counsel in the higher education sector. With these issues in the spotlight, it is an opportune time for trustees and senior leadership to vector in on how conversations regarding the use of campus counsel might impact their campuses.
Does your institution have a general counsel and if not, should it? Are there alternative arrangements with an outside law firm that could result in your institution receiving closer attention and better advice and stewardship? Is it simply time to reevaluate your institution’s use of legal counsel in light of the new legal and economic realities for institutions? How does insurance coverage play a role in institutional counsel and who on your campus oversees processes for new litigation? Both in-house and outsourced solutions could make sense for your institution, and it is important to examine fully all options.
Regardless of an institution’s chosen solution for meeting legal needs, it is essential that legal counsel have a deep understanding of the higher education sector. One long-serving general counsel has called the role an integrator of law, strategy, policy, and values. It is a common refrain for those who practice higher education law to remark on the sheer breadth of their area of practice. From employment to tax, from tort and liability issues to technology transfer and intellectual property, the array of legal issues impacting a typical institution of higher education is vast. Moreover, the unique nature of the corporate organisms that are colleges and universities require an understanding of not only a broad array of substantive legal issues but also an innate understanding of the constituent parts of the organization. Counsel to colleges and universities must appreciate how each constituent part—student, parent, faculty, staff, alumni, local community—feeds into the whole. In so doing, they must also understand how quasilegal concepts such as shared governance, academic freedom, and academic deference bear on the issues at hand and be able to explain these concepts to fiduciaries. They must understand institutional values.
Conclusion
Nearly 50 years ago former Yale President and Law School Dean Bart Giamatti wrote that one of his greatest fears for higher education was that “those who are responsible for the legal processes and those who are responsible for the daily life of the mind will see themselves as somehow engaged in different things.”10 What are the core purposes of higher education today and in what ways have the law and lawyers been helping or hurting? Have the legal strictures on colleges and universities overly constrained the actors—both faculty and administrators—charged with carrying out the mission of higher education and, in turn, compromised their institutions’ fundamental mission? Is the law helpful or a hindrance to colleges and universities and their core purposes? While ostensibly less practical in nature for fiduciaries, these are nevertheless important questions for trustees to consider as they think about the long-term for their institutions. And this is true for fiduciaries both in their more routine capacity of stewarding their individual institutions as well as in the role they play at the intersection of their institutions and the broader world.
The interactions between the law and American higher education extend beyond the transactional aspects of the obviously law-laden accounts that often capture headlines: a scandalous or tawdry lawsuit, a high-profile coach’s contract, a governance meltdown, a student tragedy. The law’s relationship with higher education is in fact a central artery in the sector’s core and existential debates. Behind questions of cost may in fact lurk the question of whether litigation, regulation, and compliance are feeding administrative “bloat” and increasing the price of college. Behind the popular critique of student “coddling” are legal questions of whether institutions are compelled by tort law trends to take on overly influential roles in the lives of their students.
Behind classical notions of academic freedom and the search for truth, there lurk questions on the lines between protected speech and harassment. Behind questions of the sustainability of the sector as a business enterprise, questions of higher education’s virtues in a democratic society, and around questions of access to higher education there is a legal adjacency. How your institution navigates and deals with these questions, or not, will be central in some way to its future success.
Lou Guard, JD, is vice president and general counsel of Hobart and William Smith Colleges. He is the co-author of All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education with Joyce Jacobsen, former president of Hobart and William Smith Colleges.
1. Megan Brenan, “Americans’ Confidence in Higher Education Down Sharply,” Gallup News, July 11, 2023, https://news.gallup.com/poll/508352/americans-confidence-higher-education-down-sharply.aspx.
2. Paul Tough, “Americans Are Losing Faith in the Value of College. Whose Fault Is That?” New York Times Magazine, September 5, 2023, https://www.nytimes.com/2023/09/05/magazine/college-worth-price.html.
3. Gregory Zuckerman, “Peter Thiel’s $100,000 Offer to Skip College Is More Popular Than Ever,” Wall Street Journal, February 24, 2024, https://www.wsj.com/finance/peter-thiels-100-000-offer-to-skip-college-is-more-popular-than-ever-162e281b.
4. Michael Sandler, “Higher Ed’s Public Opinion Struggles Are Tied to the Cost of College,” Forbes, February 7, 2024, https://www.forbes.com/sites/michaelsandler/2024/02/07/higher-eds-public-opinion-struggles-are-tied-to-the-cost-of-college/?sh=40e664aaa3c6.
5. Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the United States (Princeton, NJ: Princeton University Press, 2010).
6. Louis H. Guard and Joyce P. Jacobsen, All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education (Cambridge: Harvard University Press, 2024), 7.
7. Catherine E. Lhamon, “Protecting Students from Discrimination, such as Harassment, Based on Race, Color, or National Origin, Including Shared Ancestry or Ethnic Characteristics,” Dear Colleague Letter prepared by the Assistant Secretary for Civil Rights, United States Department of Education Office for Civil Rights, May 7, 2024, https://www2.ed.gov/about/offices/list/ocr/letters/colleague-202405-shared-ancestry.pdf.
8. David Jesse, “Your College’s Top Lawyer Has Never Been More Powerful: The General Counsel’s Office Wields Tremendous Influence. Is that a Good Thing?” Chronicle of Higher Education, February 26, 2024, https://www.chronicle.com/article/your-colleges-top-lawyer-has-never-been-more-powerful?sra=true.
9. Lauren Hirsch, “One Law Firm Prepared Both Penn and Harvard for Hearing on Antisemitism,” New York Times, December 8, 2023, https://www.nytimes.com/2023/12/08/business/dealbook/wilmerhale-penn-harvard-mit-antisemitism-hearing.html.
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