Legal Standpoint: What Is Higher Education Law?

By Steve Dunham    //    Volume 25,  Number 3   //    May/June 2017

Higher education law is not a discrete body of law unique to colleges and universities. Rather, the field of higher education law describes how various substantive areas of the law affect colleges and universities. The phrase might be better stated as “higher education and the law.”

Why should you care what higher education law is? To evaluate and act on legal advice, it is helpful if decision makers— including board members and senior executives— understand how and in what ways the “law” affects their institutions. You cannot properly ask for or receive legal advice, understand and evaluate the advice, and/or make the best decisions for your institution without a basic understanding of higher education law.

What are the areas of substantive law that are the most important for college and university representatives to understand? We have only enough space for topics, not particulars, but the following subjects define the core relationships between colleges/ universities and the law. These are the subject matter areas in which your college and university lawyers practice. These legal issues commonly arise not in litigation but in the context of the advice and counsel lawyers provide their institutional clients every day.

  • The law and governance, including the legal nature of the college/university; the meaning of fiduciary duty (a legal standard enforceable in court); governing documents, such as articles of incorporation and by-laws; the legal relevance of the institutional mission; 501(c)3 status (if a private, nonprofit); open meetings and open records (if a public); and defense and indemnification of board members, officers, and employees.
  • The law and faculty, including the legal nature of the faculty employment contract (including promotion and tenure); academic freedom; and shared governance.
  • The law and research, including research grants and contracts; and compliance with federal regulations (which includes many subtopics such as conflicts of interest, research misconduct, effort reporting, human subjects, and export controls).
  • The law and employment (staff and faculty), including all forms of discrimination and harassment; employment contracts; collective bargaining; and statutory obligations (FLSA, FMLA).
  • The law and students, including contractual and constitutional rights and obligations affecting academic dismissals; student discipline; student organizations (including fraternities and sororities); athletics; affirmative action in admissions; tort liability; financial aid and related compliance obligations, including Clery; Title IX; and First Amendment and police/ security issues related to activism and campus disruptions.
  • The Constitution on campus (for publics but also for privates through policies), including First Amendment, due process, and equal protection rights and obligations for the institution, faculty, students, and staff.
  • The law and international activities, including immigration; compliance with local laws when doing business overseas; and liability (study and travel abroad).
  • Compliance and enterprise risk management (compliance with what? What are the legal risks?).
  • Intellectual property and tech transfer, including patents, trademarks, and licensing.
  • The law and business activities, including the hundreds or thousands of contracts that most colleges/universities agree to every year; financing; real estate; construction; endowment; taxation; software licensing; and gift agreements.
  • The law and data security, including privacy, state reporting obligations, data breaches, and liability.
  • The law and crisis management (most crises and related communications involve legal issues).
  • Policy development and implementation (many internal policies have implications for contractual obligations, compliance, liability, and other legal concerns).

This is a daunting list, but it illustrates the scope of higher education law, and how broadly the law affects colleges and universities. Boards and executives should consider allocating time during orientation and/or training sessions for a legal briefing on these and other legal subjects. Such briefings will increase board and executive understanding of how the law affects their colleges and universities, clarify and underscore the role of lawyers and legal advice, and enhance the quality of decision making.

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