Colleges will have to tighten their belts amid the next recession and a subsequent mid-decade enrollment drop of roughly 15 percent. But one place they might not want to cut is their general-counsel offices.
That’s because on top of a widening list of free-speech, mental-health, regulatory, and other legal concerns, the forthcoming era of austerity will usher in a slew of new issues.
“I don’t think we’ve ever had to cope with the level of rightsizing we’re about to in higher education,” says Peter F. Lake, a higher-education-law expert at Stetson University. Tongue only slightly in cheek, he calls what’s coming the “edupocalypse.”
Higher education is in for the kind of shakeout big business experienced in the 1980s, he says, with closings, mergers, and personnel suits among the resulting legal shocks.
Those rightsizing burdens will only add to a variety of recent cases testing the range of colleges’ responsibility and culpability. And across the spectrum, increased litigation and starkly rising jury awards are leading, in turn, to painful liability-insurance premiums that hit colleges squarely in the wallet.
Consider the $32-million defamation verdict against Oberlin College in a case brought by a nearby bakery. Ostensibly triggered by a shoplifting incident, that case involved students’ subsequent statements, administrators’ and faculties’ responses to those statements, and — as The Chronicle has detailed — a general town-gown culture clash. While the size of the jury’s award was jaw-dropping, experts say it isn’t out of line with awards in other industries, and colleges better get used to their vulnerability to such judgments.
Says Scott Schneider, a specialist in higher-education law, a partner in the Austin office of Husch Blackwell, and an instructor at Tulane University’s School of Law: “People have hard and fast opinions about colleges and universities, and in some communities these are not popular institutions. … Some lawyers and juries will really try to stick it to an institution they think is out of touch.”
These are not popular institutions. Some lawyers and juries will really try to stick it to an institution they think is out of touch.
And class action suits are on the rise. Corporations in 2018 spent almost $2.5 billion defending against them. Colleges already face a litany of class actions — most visibly in sports abuse scandals like those at Michigan State, Ohio State, and Pennsylvania State Universities. But class actions can also stem from questions of financial responsibility — unpaid overtime, for instance, or poorly managed retirement-account investments. They might relate to cybersecurity, discrimination allegations in faculty layoffs or pay; antitrust claims regarding tuition, admissions, athletics, or hiring; or medical issues like concussion, mold, or other sick-building situations.
“Litigation trends are incredibly hostile to higher education,” says Lake. And class actions are litigation on steroids.
Here, according to college general counsels, higher-education lawyers, and other experts, are a half-dozen other trends you’re likely to see over the next five years.
In Loco Parentis
More and more, parents look to colleges to keep their children safe and well. When tragedy strikes, they take those dashed expectations to the courthouse.
In a $56-million suit filed in 2019 by the parents of Lauren McCluskey, a slain University of Utah student and track star, Matt and Jill McCluskey argue that university police officers didn’t respond properly to stalking, abuse, and intimidation by their daughter’s angry ex-boyfriend. The university’s president has said that a review, although finding fault with campus police and housing officials, “does not offer any reason to believe that this tragedy could have been prevented.” McCluskey’s family has hired a former state Supreme Court chief justice to represent them.
The family of Olivia Shea Paregol, a student at the University of Maryland, claims that college officials did not quickly and properly alert students to the spread of adenovirus in moldy dorm rooms, resulting in Paregol’s delayed treatment and subsequent death in 2018. An outside review determined that the university followed protocols but also identified areas of weakness in its response and recommended changes in procedure. The family has filed notice of intent to sue.
Describing courts’ movement toward holding institutions responsible for students’ safety, lawyers sometimes cite the $41.7-million verdict against the Hotchkiss School of Salisbury, Conn. A jury awarded that amount to the family of Cara Munn, who at age 15 contracted debilitating encephalitis from a tick bite while hiking during a school trip to China.
That case concerned a minor, which most college students aren’t. But rulings regarding student suicides at Iowa State University and MIT also nudged liability at least partially back toward the university after a half-century of movement in the other direction.
In the same vein, colleges are watching a case concerning a Rhode Island School of Design student who, in 2016, was raped by a classmate during RISD-sponsored study abroad in Ireland. The students’ doors had no locks, and U.S. district court Chief Judge John J. McConnell is allowing the case to go to trial.
He cited “a special relationship” between RISD and the victim that should have assured her of safe housing. A similar incident had been reported to RISD during a study program in Rome three years earlier, and, given that, the court found that the danger in the Ireland program could have been anticipated.
New Title IX Regulations
If proposed Education Department rules take effect, among them will be required cross-examination of both accuser and accused during college hearings in sexual assault and harassment cases. That, says one university’s general counsel, would be “a sea change in how universities have approached student discipline.”
Betsy DeVos, the secretary of education, argues that the new rules would restore balance in a system she thinks is tilted unfairly against the accused. Critics say the rules would impose courtroomlike procedures in an inappropriate context. At any rate, they would very likely be expensive.
Glenn C. Altschuler, an American-studies professor and former dean at Cornell University, and President David Wippman of Hamilton College predict in a recent op-ed for The Hill that wealthy students will want their own lawyers, and poorer ones will be assigned college-appointed advisers, who will also probably be lawyers. And even more lawyers will be needed to oversee the process.
Mental Health
A class-action suit in 2018 alleged that Stanford University was inappropriately forcing students with mental illness to take involuntary leaves of absence. That was settled in 2019 with a revamped leave policy that is considered a model for other colleges.
But as an increasing number of students enroll with histories of mental-health problems and medications, many related issues remain legally murky, and the courts will have to help sort them out, says Laura Horne, the chief program officer for Active Minds, which promotes mental-health education and awareness for students.
“A lot of campuses, I think, would like more clarity on their role and responsibility for providing care for students and preventing suicide,” she says.
Should students with suicidal ideation be allowed to live on campus? Do Family Educational Rights and Privacy Act protections allow for any communication with parents about students in crisis?
Courts might weigh in, too, on best practices for ensuring that peer support is effective and used only when more traditional clinical services aren’t needed. They could help establish the best use and supervision of graduate assistants with master’s degrees acting as counselors when not enough clinical psychologists are available.
Overwhelmed by demand for counseling services, colleges are experimenting with self-help and teletherapy apps that are sometimes anonymous or that connect students with counselors — via chat, voice, or video — in other states and even other countries. The growing range of therapeutic options gives students more portals to seek help, whether they need reassurance during a rare midnight panic attack or a long-term therapist for intensive treatment of chronic illness.
The new tools, however, also increase the spectrum of liability should situations go wrong. Where does responsibility fall, for instance, when teletherapists don’t connect with the student’s local emergency personnel fast enough to avert a suicide?
Marijuana
Pot is legal for medical purposes in 33 states and the District of Columbia, and for recreational purposes in 11 states plus the District, but federal law prohibits its use, and colleges that accept federal funds are caught in the middle.
Challenges arise in medical programs in which students are routinely tested for drugs. In Arizona, a diagnostic-medical-sonography student was expelled from Gateway Community College for using marijuana, with which she treats chronic pain from polycystic ovary syndrome. In Connecticut, a nursing student was barred from clinical medical rounds at Sacred Heart University after she tested positive for marijuana. Both students have sued their colleges.
One university general counsel tells The Chronicle that another challenge could occur under the federal Americans with Disabilities Act. A punished student could start by filing a complaint with the Office for Civil Rights in the U.S. Department of Education, which would presumably reject the claim because of the federal ban. Then the student could bring a private “right of action” against the university to allow use of the drug. That might force a closer examination of the situation by the courts.
#MeToo Ricochets
Colleges are caught in the middle, too, when it comes to personnel who leave after being investigated for impropriety. That situation is becoming more common in sexual-assault and harassment cases especially.
Here’s a representative scenario: An employee leaves or is let go during or after a Title IX investigation. He is on the short list for a job at another college. That college asks the first college to confirm that the former employee wasn’t the subject of an investigation into harassment or sexual violence.
If the former employer says there was no such investigation, it is potentially passing on to another institution a serial offender the way some church dioceses passed along child-abusing priests. But if the employer says yes, particularly if the investigation was still in the allegation stage, the college could be accused of defamation. It’s a lose-lose situation for the college being asked, and it’s becoming more common.
Similarly, 35 states and more than 150 cities and counties have passed “ban the box” legislation that prohibits asking job applicants early in the process if they have been convicted of felonies. That can keep employers more open minded, at least before subsequent background checks, and give rehabilitated criminals a fresh start.
But colleges would also, naturally, like to know if they are bringing onto campus a potential predator. If a job is initially offered and then rescinded on the basis of the background check, the college could be accused of discrimination. But if it goes through with the hire, it is potentially liable if things go wrong.
Closures, Mergers, and Downsizing
Higher education has been overbuilt during the last 40 years, and it is in for a serious contraction. Stetson’s Peter F. Lake points to just some of the possible ramifications:
- As colleges shed personnel, all the oft-ignored minutiae in those faculty handbooks might suddenly become very important. Enrollment plunges won’t necessarily suffice as rationale for layoffs, and the closures of departments, centers, and schools will be second-guessed and fought tooth and nail.
- With layoffs will come a flurry of equal-opportunity claims on grounds of ageism, sexism, and other bigotries. Some of those claims will be legitimate, some won’t. But they’ll all require review by colleges’ general-counsel offices.
- A common-sense way to defray expenses is to lease space in unused or underused buildings, or to sell them outright. But the donors who paid for those buildings, to be used for favored, specific purposes, “may rattle a saber and try to block the sale,” Lake says. Many donor understandings are “handled with handshakes and backroom deals,” but when philanthropists’ purposes are undermined they can become a whole lot less chummy.
- Similarly, some of those buildings were backed by bond issues. When colleges try to sell them or use them for purposes other than originally intended, the bond holders may well challenge those moves.
- With budget slashing, student services will face cuts. Those might include mental-health counseling, or support for ethnic and racial minority organizations or LGBTQ groups. Claims on the grounds of social-justice or disability rights could result.
- With the closure of programs, schools, or entire institutions, students and alumni could sue trustees and administrators for the erosion of a college’s or university’s brand. That will be more likely to happen with more-prestigious institutions, especially ones with renowned, or formerly renowned, professional schools. On the bright side, alumni could invest in and help save an institution. The flip side of that, however, is that it would entail governance wars — essentially hostile takeover bids by alumni.
- In those battles, what is the value of a college facing liquidation? As with old shopping malls, Lake says, the buildings are functionally useless. The real value will be what alumni are willing to pay to maintain the prestige of their educational backgrounds. Expect the involvement of lawyers and investment bankers as alumni perform the equivalent of buying back their own stock. Expect, too, posturing on both sides. “I have seen people fight over carcasses,” Lake says.
As we’ve seen, an ever more prominent motif in these scenarios is the no-win situation. Regulators want more control; faculty chafe under that control. Assault victims want empowerment and to be treated with sensitivity; their accused want rebuttal and proceedings that aren’t stacked against them. Colleges want to know the backgrounds of those they hire but risk suits if they comment on those they fire.
And so on.
For lawyers, the current and expected climate is good for business but sometimes bruising to the spirit. From a college’s administrative standpoint, it is expensive and harrowing.
