For college administrators, the day often begins with emails. If you are lucky enough on any particular morning not to become immediately engulfed by an urgent matter on your own campus, then there is a good chance you will start your day by scanning the news at other institutions. Inevitably, many of those stories relate to legal controversies, whether pertaining to civil-rights statutes like Title IX, Title VI, and the Americans With Disabilities Act, issues of academic freedom and free speech, or numerous others, like student mental health, athletics, study abroad, Greek life, admissions, or academic governance. Earlier this year, a Chronicle headline declared that “Your College’s Top Lawyer Has Never Been More Powerful.” Has higher education indeed become “lawyerized”?
In short, yes. But in our view, saying that higher education has become “lawyerized” describes not the perceived role of lawyers, but the sector’s increased regulatory pressures, litigation trends, and operational complexity set within an environment of heightened public scrutiny and politicization. A rollback of these forces anytime soon seems unlikely.
Not so long ago, it would be fair to say that colleges had relatively little interaction with the law. Faculty, students, and even administrators carried out their studies and duties largely unencumbered by the legal strictures that were enveloping other sectors. But as the 20th century progressed, the gates of the academy opened to more than just successive generations of students. Finding their way to campus were federal, state, and local governments and associated agencies, accreditors, quasi-regulatory groups, influential professional associations, insurance companies, and plaintiffs.
The early stages of this shift have been well-documented. In the 1960s, the federal government officially put its handprint on higher education in the form of the Higher Education Act, and a professional organization for higher-education lawyers, the National Association of College and University Attorneys, was formed in Washington, D.C. By the 1970s, a few well-heeled major colleges were hiring in-house legal counsel to deal with novel legal issues facing their institutions and the academic sector at large, but these institutions were the exception rather than the rule. Most colleges continued to think of “the law” as mostly irrelevant to their internal processes, other than the occasional lawsuit that could be cordoned off from the institution’s main workings.
'Repressive Legalism'
The general counsel’s office wields tremendous influence. Is that a good thing?
But soon the number of institutions using in-house counsel would increase as legal and regulatory issues grew more complex. Lawsuits seeking the private enforcement of federal statutes — many of which figure prominently in the world of higher education, including Title VII, Title IX, and the ADA — have increased steadily since the 1960s. The data then show a strong uptick in lawsuits beginning in the early 2000s. (Discrimination lawsuits are the single largest category of litigation in federal courts.)
Campuses were increasingly feeling that heat. A simple search of both Westlaw and Lexis, the two main legal-case databases, reveals that the number of cases in these databases that involve a “college” or “university” as a party (overwhelmingly as the defendant) has risen dramatically.
While litigation, or the avoidance of litigation, takes up much of the attention of campus lawyers, many of them are also involved either in understanding and assisting with carrying out governmental regulations, or are engaged in the process of following and comprehending relevant bills as they move through the federal and state legislative sessions. Each year, additional regulations are proposed by administrative agencies, and additional statutes are passed by the legislatures in the federal or state governments. Local government regulations also affect campuses and can require campus legal input, such as zoning laws affecting student housing and infrastructure fees or other creative local-government attempts at taxation. Negotiation of PILOT (payment in lieu of taxes) agreements with local governments is a major task for campus lawyers, and these agreements can get complex. Last year, for instance, Brown University agreed to double its contributions relative to the previous agreement, but the deal also involved some transferring of land from the city, Providence, R.I., to the university.
The incredible range of legislative proposals that can affect colleges takes much legal and administrative campus time — even if just to consider and lobby for or against, even if they are not enacted into law. Whether it is protecting or prohibiting the carrying of weapons on campuses, banning drag shows on college grounds, restricting spending on diversity efforts, banning legacy admissions, or taxing college endowments, the range of campus issues that legislators are increasingly deciding to take an interest in is vast.
Governors may also take activist stances toward campuses. Look no further than Scott Walker, a former Republican governor of Wisconsin, who attempted to change language in the mission statement of the University of Wisconsin system, replacing “search for truth” and “improve the human condition” with “meet the state’s work force needs.” Meanwhile, the federal government appears to be in a continued upswing regarding proposed regulations directed at campuses: In mid-2023, the Biden administration released a large packet of proposed regulations, including additional reporting requirements, additional tests for financial viability, and making college subcontractors subject to Department of Education regulations. The House Committee on Education and the Workforce has been repeatedly pressing college presidents (and their legal counsel) on campus antisemitism — the presidents of Yale University and the Universities of California at Los Angeles and Michigan have been summoned to testify later this month. Based on both presidential candidates’ public stances, there is no reason to think federal involvement with higher education will decline anytime soon.
Not surprisingly, all of this has led to a rise in the number of campus lawyers. Data compiled by the Chronicle between 2010 and 2019 show steady increases in the number of listings for the office of general counsel jobs during that period, with the number of job ads posted more than tripling between 2010 and 2018. While most smaller institutions make do with a “solo” general counsel who may be supported by a paralegal, legal teams at larger colleges can consist of more than 20 or 30 professionals with specialties focused on the various legal needs of the institution.
The array of issues on campus that require or benefit from the attention of a general counsel is staggering. Here is a sample of the forces driving the lawyerization of higher education.
Civil Rights
Title IX has accounted for much of the campus-news headlines over the past 10 to 15 years, and it continues as an area where the general counsel expends significant time and effort. In addition to policy changes spurred by oft-changing regulations, the general counsel may also give process advice in individual cases. Title IX litigation has also evolved significantly, with courts disagreeing over key aspects of the legal standards related to lawsuits under the statute.
Enforcement of Title VI is an evolving area that has recently been punctuated, sadly, by a nationwide rise in both antisemitism and Islamophobia. A Department of Education investigation at the University of Vermont is an example: A complaint alleged that a campus group sought to exclude Jewish students, and that Jewish students faced online harassment from a teaching assistant — as a part of the resolution the university agreed to revise its policies and issued a statement. Actions under the Americans With Disabilities Act have also increased on campuses in recent years, affecting a wide range of issues including service animals, academic accommodations, physical campus accessibility, and faculty and staff layoffs and firings.
Free Speech and Academic Freedom
Free-speech controversies have roiled campuses over the past decade, including during the current campus protests over the ongoing war in Gaza. In such cases the general counsel is often called upon to weigh in on the legalities, or lack thereof, around specific speech issues. The general counsel must also be versed in the literature on academic freedom and understand its nexus with free-speech protections as a legal matter. The case of Meriwether v. Hartop gained significant attention in the higher-education press when the Sixth Circuit Court of Appeals, relying in part on academic-freedom constructs, upheld the right of a professor to refuse to use preferred pronouns. (“Do Professors Have a Right to Mistreat Students?” asked a Chronicle headline detailing the case.) The legal doctrinal complexities behind such a scenario are incredibly nuanced, and while most issues do not evolve to become federal cases in courts of appeals, general counsels are often asked to provide guidance and counsel in such scenarios.
Student Life
Nearly all facets of student life on campuses have now become legal flash points. College athletics have become significantly more complex, especially since the Supreme Court’s decision in the National Collegiate Athletic Association v. Alston, evolving to include legal issues related to the treatment of athletes as employees, potential unionization of athletes (and other students employed by colleges), and complexities related to name, image, and likeness. Student mental-health concerns have raised novel questions of liability for colleges. Greek life continues to present thorny liability issues for campuses. And study abroad has received significant attention of late as an area for evolving institutional liability. In all, courts have moved on from in loco parentis — and its implied trust in institutions always to make the right decision — and taken a more skeptical and monitored approach to colleges’ interactions with students. Deference, both as a legal doctrinal matter and as it relates to the court of public opinion, seems to be waning.
On top of these issues, college lawyers must deal with changes in admissions guidance, 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. There are governance controversies, tenure denials, and board-member misbehavior. For institutions squeezed by demographic and economic shifts, mergers, acquisitions, closures, shared-service arrangements, consortial contracting, and group purchasing are enormous tasks to explore and then, in some cases, undertake.
The reality is clear: Litigation is up; regulation is compounding upon itself. Long-held legal doctrines of deference to higher education have shifted. Public skepticism toward higher education is growing. Legislatures and lawmakers are not hesitant to wade in and exert the power of law and legislation on what for a long time was an isolated endeavor. And demographic and economic realities are forcing innovations across the sector that require business-like legal acumen to keep colleges solvent and thriving.
This essay is adapted from All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education, just out from Harvard University Press.