From academic freedom to technology transfer, legal issues now reach into almost every corner of campus life
Related articles: View all of the advice and commentary from this special supplement on legal issuesBy ROBERT D. BICKEL and PETER H. RUGER
Legal issues concerning higher education have grown significantly in scope and impact over the past five decades. Consider these statistics: In 1961, just 50 colleges had legal-counsel offices, most employing a single lawyer. Only 20 years later, the National Association of College and University Attorneys, to which most lawyers who practice higher-education law belong, had 2,058 members. Today the association’s membership totals more than 3,000.
Why has such rapid growth occurred? How has the practice of collegiate law changed? What roles do lawyers play on campuses today?
If geology can be a metaphor for the development of a distinctive body of higher-education law over the past 50 years, then metamorphosis, a process characterized by significant change in response to heat and pressure, best describes the first half of that period. Starting in the 1960s and continuing into the 1970s, constitutional, common-law, and statutory concepts evolved at an unprecedented pace as colleges struggled to cope with explosive societal forces.
Some of the most important changes began with the civil-rights acts of the 1960s, which many legal scholars have characterized as the most important pieces of legislation in American history. Although those seminal statutes were intended to broadly define a new social policy in public education and employment, they had an immediate impact on higher education by creating opportunities in academic programs and employment that had previously been closed to female and minority students.
At the same time, the civil-rights movement inspired popular demands for rights to both substantive and procedural due process, which eventually recast the role of the courts in higher education. The unpopularity of the Vietnam War and the concomitant aversion to criminal sanctions against antiwar demonstrators, for instance, led to the creation of campus disciplinary codes at colleges and the need for legal experts who could help write and enforce those codes.
The era gave birth to a series of U.S. Supreme Court cases, all involving civil rights, that were the progenitors of new constitutional case law that re-established the parameters of free speech, free association, and free press at state-supported colleges and universities. Those rulings, in turn, inspired an awakening of faculty concerns that captured the attention of the federal courts: academic freedom, tenure, and the right of professors to associate and even organize for both academic and economic reasons. While not required by constitutional law, private institutions emulated many of the due-process mandates applicable to public campuses.
Indeed, an eruption of judicial decisions concerning conflicts over fundamental rights forever transformed the practice of higher-education law. The courts dealt with:
- Attempts by colleges and universities, influenced by state political leaders, to suspend or expel students for protesting racial discrimination in higher education. The courts held thatstudents are entitled to due process of law.
- Questions involving the parameters of protest and the protection of unpopular speech and debate about social and political issues. Landmark rulings held that colleges should protect the content of student speech but that reasonable limitations on time, place, and manner of speech and protest -- like restrictions that prevent the disruption of academic activities -- are appropriate.
- Cases revolving around whether students have the right to associate and form organizations that promulgate unpopular political and social topics. Some historic cases involved unsuccessful attempts by colleges to ban gay-rights organizations and political groups, like the Students for a Democratic Society, that were critical of “Americanism.” Student religious groups also gained access to public campuses’ facilities during this period.
- The freedom of the campus press, redefining it in keeping with the fundamental protections of the First Amendment. Attempts by public colleges to withhold financial support for campus newspapers when their content was deemed untasteful or even loathsome by the administration were rebuffed by the courts.
- Faculty rights in their most basic sense, in cases that questioned the legitimacy of restrictions on academic freedom. For example, a loyalty-oath requirement was found to violate free speech because it limited the scope of a professor’s teaching and research. Faculty members sought the protections of labor laws and the right to bargain collectively.
- Employment-discrimination laws that considered the disparate treatment of minority groups and women in hiring, pay, job assignments, promotion, and the awarding of tenure.
- The formal breakup of racially structured systems of public higher education in Alabama, Louisiana, Tennessee and at least nine other states.
The need for legal expertise on campuses was immediate and urgent, resulting in the rapid growth in the number of lawyers practicing higher-education law. The University of Alabama had created the first campus legal office, in 1925 and, historically, lawyers had always been involved with colleges: The founders of many higher-education institutions were lawyers, and they served as both trustees and outside counsel. The events of the 1960s and 1970s, however, produced an unprecedented demand for better and more-accessible legal services.
During that era, it was observed that the first law for the proper use of counsel was to have one. Although the role of most higher-education lawyers was to serve as their institutions’ advocates and to deal with the immediate demands for reforms concerning student and faculty rights, colleges soon recognized the advantages of employing legal counsel to help formulate and administer institutional policy. The new law offices quickly expanded to provide full-service legal counsel.
Returning to the geological metaphor, the most recent 25 years of higher-education law can be likened to sedimentary processes, with an occasional igneous intrusion. In other words, legal issues have generally built on existing ones, with heightened activity -- not unlike a volcanic eruption -- occurring from time to time because of national or local developments.
The latter can be seen, for example, in the Congressional response to September 11, which has raised questions about privacy, the matriculation of foreign students, and campus security. In other matters, student suicides and frequent incidents of abusive drinking by students have fostered a more intensive examination of the intersection of law and science.
Apart from such pressing concerns, however, the practice of higher-education law has been shaped during the past 25 years primarily by the simple and straightforward evolution and application of traditional legal concepts. Since the 1980s, legal conflicts have remained over certain basic rights: the parameters of academic freedom in the context of teaching and research, the limits of the Free Expression and Establishment Clauses of the Constitution on college campuses, and the meaning of diversity in the admission of students to public institutions. At the same time the issues have become more complex, developing many new facets that require legal counsel.
In fact, the “sedimentary” growth of higher-education law -- across the spectrum of property, contracts, and torts -- has involved the modern lawyer far more in virtually all aspects of institutional affairs. At many large universities, legal-affairs offices now cover some 20 or 30 major practice areas. In the 1970s it was not uncommon for those institutions to have only one or two lawyers -- true generalists.
Now specialization is increasingly the norm, particularly in the larger counsel’s offices at research institutions with medical schools. For example, since 1974 the number of lawyers at Washington University in St. Louis has grown from one full-time and one part-time professional positions to 11 people, with specific counsel devoted to technology transfer, health sciences, and other distinct practice areas.
The increasing complexity and variety of the practice of higher-education law is confirmed by comparing the program for the 1984 annual conference of the National Association of College and University Attorneys with this month’s program. Twenty years ago, there were 26 general sessions; in 2004 there are 72. Absent from the 1984 program but included in this year’s are sessions about cyberspace, collective bargaining, discrimination litigation, downsizing, student drug and alcohol abuse, international involvement, and trustee responsibilities. Other topics, unanticipated and unforeseen in 1984, include homeland-security issues that stem from September 11 and governance changes prompted by recent corporate scandals.
The first rule of the American Bar Association’s Model Rules of Professional Conduct states: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation."Applied to colleges, “competent representation” today means preventive advice. As early as 1974, one of us, Robert Bickel, suggested that the primary role and responsibility of college lawyers was to provide preventive advice that would save the institution from formal litigation or other challenges. The value of the concept is as viable as ever today, although it remains difficult to carry out because of limited time and money.
What do we mean today by “preventive law”? A higher-education lawyer must keep his or her college aware of judicial decisions, legislation, and regulations that influence its activities and operations and then must help create or revise policies and practices in response. Campus counsel must also identify future issues and provide advance guidance to deal with them. In addition, preventive law requires other people throughout the institution to involve counsel regularly in their activities -- before any legal crisis occurs.
Thus, lawyers must collaborate with their clients throughout the institution to achieve institutional goals, a process that sometimes requires a balancing or reconciliation of competing rights and interests. The lawyer’s understanding of the role of the law in defining rights and shaping policy must merge with the administrator’s own expertise and principal concern for sound academic and student programming. Accomplishing that merger is the most important goal of the maturing relationship between lawyers and the administrators they serve.
Consider, for example, the admonition of the Supreme Court in Oncale v. Sundowner Offshore Services Inc. (1998) about one of the most important workplace issues: the harassment of workers by superiors or peers, motivated by racial or gender bias. While expressing its deep concern that workers should be able to do their jobs free of hostile or abusive conduct directed at them because of their race or gender, the court cautioned that the law cannot create a philosophy of civility, but is limited to the granting of civil reparation for an objectively hostile or abusive work environment. In that ruling, the court implied to lawyers and administrators alike that institutional aspirations for civility must ultimately be dealt with by policy, with the sanctions of the law applicable only in the most severe situations.
Campus lawyers must understand that and see the law for what it is. For their part, other campus officials must not regard the law as providing a simple definition of the rights and responsibilities of students, faculty members, and administrators collectively, nor must the officials expect the law to easily resolve tensions among those groups and with outside parties.
In some matters, the administration of law is easy -- for example, when a simple compliance approach is needed. But take the example of crime reporting: A college may “comply” merely by defining who is responsible to report crimes, but the broader concerns for student safety that prompted the Crime Awareness and Campus Security Act call for a much more complex analysis of law and policy. In a sense, compliance, or the reporting of crime statistics, reflects failure and avoidance of the question of why crime is occurring and how it can be prevented or at least diminished.
Or consider the issue of equal access to higher education. While justifying the state’s compelling concern for cultural and intellectual diversity, the U.S. Supreme Court’s most recent decision, in the University of Michigan Law School case, falls short of prescribing how institutions should obtain that diversity. Thus an “interdisciplinary effort” among administrative departments throughout each college is needed to interpret what is acceptable in admissions policies.
The changing nature of the practice of legal affairs on campuses is reflected in the type of training that lawyers increasingly seek. For 25 years, for example, one of us, Robert Bickel, has organized an annual interdisciplinary conference on law and higher education. Attendance at the conference, which is sponsored by the Stetson University College of Law, has grown significantly, and the participants are not only campus lawyers but also professors, security and police officers, student-affairs directors, risk-management experts, human-resource managers, business and financial officers, judicial-affairs administrators, and many others -- representing the need for all those individuals to work together to resolve legal issues on their campuses today. Nacua has seen a similar growth in the interdisciplinary training and publications that it offers its members.
College administrators vary in how well they work with their lawyers. Many officials are knowledgeable about the law and its relation to policy issues; they have become quite adept at analyzing complex matters, factoring in legal and nonlegal questions and concerns. Some college presidents, in particular, use their lawyers as advisers and counselors very effectively. Yet despite a significant maturing of the relationship between legal counsel and campus CEO’s, many “junior” administrators know higher-education law, and manage it better, than their presidents or trustees do. That is understandable, especially when the administrators’ responsibilities focus on a discrete area of law, like carrying out the requirements of the Family Educational Rights and Privacy Act. However, presidents should recognize that their legal counsel interact with people throughout the institution and can provide insights more valuable than simply interpreting court decisions and statutes.
In fact, if the first law for the proper use of counsel is to have one, the second is to use that counsel wisely, by involving lawyers in all major matters that raise questions about legal rights and responsibilities. And the third law is that lawyers should appreciate that they must not be insular in their thinking about the law’s relation to policy, decision making, or administration generally.
In 1985, Roderick Daane, a former general counsel at University of Michigan, listed in The Journal of College and University Law six basic roles of campus counsel: advisor-counselor; educator-mediator; manager-administrator; draftsman; litigator; and spokesperson. Those roles are still current, but at least two others have emerged: insulator and dispatcher.
The insulator role, often performed in conjunction with one of the others, comes up when legal counsel serves as a buffer between the institution and some outside entity or individual -- for instance, a government agency, lawyer, or parent -- to limit disruption on the campus. Threats of legal action or intrusive and burdensome requests for data by government investigators should be diverted to counsel, sparing others on the campus. It “comes with the territory” and is to be expected that lawyers will deal with the disgruntled and distraught. Their willingness to do so benefits their colleagues.
The dispatcher role is simply this: If someone in the institution doesn’t know what to do with a document, or how to handle a situation, it will wind up on the counsel’s desk (or in his or her e-mail), to be dispatched or handled as quickly and efficiently as possible. Items in this category range from the mundane -- class-action notices or bankruptcy filings -- to the atypical. We have experienced calls from a student upset because her telephone number was listed in a campus restroom; anonymous letters accusing administrators of extramarital affairs; and incidents involving stray dogs on a campus. Perhaps the oddest duty that one of us, Peter Ruger, performed was grappling with a former student trying to choke the chancellor of the university.
How have campus legal offices changed in the past few years? Certainly, like other institutional offices, they have experienced budgetary constraints and cutbacks. Vacant positions go unfilled or have been eliminated. Meanwhile, issues surrounding layoffs of faculty and staff members have added demands on legal counsel.
Many lawyers already have more issues than they can handle, raising concerns about their ability to effectively represent their clients. At the same time, the rising cost of the legal system, particularly the cost of litigation, has influenced how legal issues are approached by both counsel and clients. The use of alternative methods of resolving disputes, especially mediation, is widespread today. Early and thorough evaluation of claims has become essential, and apprehension concerning the costs of litigation have tended to make settlement offers more generous than before. The lack of salary increases and the limits on budgets to support continuing legal education have also had a demoralizing effect on many college lawyers.
During the past 25 years, senior campus counsels have increasingly received the title of vice president. Many have spent most of their careers as higher-education lawyers, so the new title is appropriate as recognition of both their expertise and the importance of their role. It has also helped send the message to others on the campus to contact counsel immediately about any issues that might have legal aspects.
The title often carries with it the responsibility for supervising additional departments, like risk management, law enforcement, government relations, athletics, and the billing-compliance operations of the medical school. At the same time, other administrators -- for example, the chief human-relations officer -- often have law degrees. Whatever the case, colleges have certainly recognized the need to employ lawyers as specialists, generalists, and, in some cases, chief policy officers.
As we look ahead to the next decade of higher-education law, the geological metaphor continues to be apt. Not only will change be gradual, with an occasional eruption, but it will also sometimes involve erosion. For example, on most campuses, lawyers have transferred responsibility for complying with the Health Insurance Portability and Accountability Act to other staff members. Once lawyers have advised their clients on how to handle novel or ambiguous issues, like new legislation or major judicial decisions, administrators usually assume greater responsibilities for carrying out any new projects and programs called for by such legislation or decisions.
In the future, the practice of higher-education law will continue to become more specialized, and a generation of counsel who were generalists, now nearing retirement, will become extinct. Modest growth of in-house counsel will occur, along with an addition of administrative responsibilities for counsel.
Some observers have predicted that the time that legal counsels spend on cyberspace issues will increase more significantly than other topic areas. However, a continuation of the current stagnation, or a decline, in financial support for higher education will give lawyers a plethora of labor and employment issues to handle as well. There will be no shortage of complex and interesting legal issues in the years ahead.
Recognition by both counsel and their clients of the limits of the law as the solution, or even the primary response, to all higher-education issues will continue. Successful counsel will recognize the importance of identifying and working with the constituencies that must be involved in the policy or decision-making process. And whatever the course of geological change, lawyers will continue to play a major role on our college campuses.
Robert D. Bickel is a professor of law at Stetson University College of Law and the author, with Peter F. Lake, of The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? (Carolina Academic Press, 1999). Peter H. Ruger is of counsel to Tueth, Keeney, Cooper, Mohan, and Jackstadt, a law firm in St. Louis. Previously he served as general counsel for Southern Illinois University system and Washington University in St. Louis.
http://chronicle.com Section: Legal Issues Volume 50, Issue 42, Page B1