What Keeps Your Lawyers Awake at Night?

By Lori E. Fox    //    Volume 24,  Number 5   //    September/October 2016

Each summer, higher education lawyers gather at the annual conference of the National Association of College and University Attorneys (NACUA) to hear speakers and discuss topics relevant to our institutions. The meeting is also a chance for networking and candid conversations with others confronting similar challenges. The annual conference program, together with NACUA’s biannual survey of chief legal officers, provides insight into the issues that keep your lawyers up at night. While much of their time may be consumed with routine contracts or litigation, these are the issues that demand their focus.

Compliance. Colleges and universities have always been responsible for complying with generally applicable constitutional, statutory, and common law obligations, including employment, tax, real property, and tort laws. Higher education-specific regulation arose with civil rights laws and federal funding of research and financial aid. But recent years have seen extraordinary increases in the volume and specificity of regulation. The Campus Security (Clery) Act is just one example. In 2014, the Department of Education issued new regulations under the Violence Against Women Act, which integrated Title IX concerns with those of Clery; campuses scrambled to update policies and procedures before the 2015 deadline. This summer, a new Clery handbook further expanded institutional obligations. The handbook is not technically regulatory, but DOE prepared it for use by those “responsible for evaluating an institution’s compliance”— so institutions scoff at their peril. Your student affairs, Title IX, and public safety officials are, with your lawyers, scrambling again.

Diversity and inclusion. Diversity and inclusion, and the challenges of responding to related activism and unrest, were a particular focus of the NACUA conference. Higher education lawyers breathed a collective sigh of relief when, just prior to the conference, the Supreme Court upheld affirmative action law in the Fisher v. University of Texas at Austin case. Sessions on Fisher emphasized that race- and ethnicity- conscious approaches to promoting diversity remain subject to rigorous judicial review; discussion focused on how to continue working with institutional leaders to enhance diversity and inclusion in legally defensible ways. Speakers also addressed student activism and unrest and how counsel can help address these challenges sensitively and productively.

Gender misconduct and other behavioral and safety issues. Preventing and addressing campus sexual assault remains a critical concern. Federal scrutiny has been heightened since 2011—with over 200 Office of Civil Rights investigations now open—but there are fresh challenges. Efforts to keep students safe and meet federal demands may conflict with obligations to treat all students fairly. Some institutions are now defending claims by accused students who argue that they did not have an adequate opportunity to defend themselves. At the same time, institutions are dealing with growing numbers of troubled students, raising issues about accommodating and supporting those students and also protecting the larger community.

Governance. Most lawyers work collegially with their boards, presidents, and other institutional leaders; this is one of the pleasures of representing higher education. Counsel become concerned when there are disruptive conflicts within boards or between boards and presidents. Some worry about ensuring that boards understand their fiduciary duties and managing conflicts of interest.

The entrepreneurial university. Increasingly entrepreneurial aspects of higher education, including issues relating to intellectual property, distance learning, and partnerships with private businesses, have created new and complex legal demands.

The international university. As distance learning makes institutions ever more national and international, laws of other jurisdictions pose challenges. How do institutions cope with vastly greater sources of possibly relevant law? And how do we address the privacy and security vulnerabilities inherent in an ever-increasing digital presence?

Doing more with less. Like most college and university units, legal offices are being asked to do more with less. Counsel worry about meeting institutional needs with limited resources. Particularly at smaller institutions, they are also concerned about the need to take on other, sometimes conflicting, roles, such as overseeing Title IX compliance.