Once upon a time, administrators on college campuses would gather in corner offices to write new policies or start new programs. When their work was done, someone would say, “run this past the lawyer” to make sure all the legal t’s were crossed and i’s were dotted. That lawyer was seldom found down the hall, but in some downtown office building.
Today, the lawyer is not only in the meeting, but increasingly casts a deciding vote. General counsels wield considerable power atop campus organizational charts, sitting in on nearly all high-level meetings and shaping colleges’ responses to everything including Supreme Court rulings and how much of the endowment should be spent. A whisper in the president’s ear or a timely memo to the board chair can scuttle a program, send another administrator packing, or even shift a college’s direction.
The growing power in the counsel’s office can have negative consequences. Caution about legal vulnerability can lead campuses to overreact to restrictive laws, or even shield allegations of abuse from public scrutiny. It has led to the prevalence on college campuses of what one critic calls “repressive legalism.”
But as regulatory mandates continue to roll out — both political parties have plans for increased regulation of higher education — and as societal pressures mount, the number of staff lawyers and their authority are likely to keep expanding.
Regina Mincberg has seen the shift firsthand. Hired in the summer of 2018 as the director of compliance and university counsel to help Oglethorpe University deal with increased regulations, she quickly saw her scope of responsibilities change. Now wearing the dual hat of general counsel and chief of staff, she’s in every important meeting, where her job is to look at the environment around the university and advise on its effects on plans and policies.
“I’m probably the most outward-looking person on campus other than the marketing and communications person,” she said. In her role, Mincberg works both with other senior leaders on campus and with the board, often serving as a go-between. She evaluates risk to the institution and has to be able to work with everyone, including the finance office and the admissions team. The importance of the role is only going to grow, she said, along with areas for general counsels to be involved in. “There’s no way there’s going to be less to do,” she said. “The need for the 360-degree view held by the university counsel is only going to increase.”
In the 1960s and 1970s, general-counsel positions existed only in some elite colleges, said Lou Guard, general counsel at Hobart and William Smith Colleges and co-author of the forthcoming book All the Campus Lawyers. Often a board trustee would handle what legal work there was — largely contract review or the occasional lawsuit.
Then the federal government started increasing regulation of higher-education institutions, forcing campuses over the ensuing decades to come into compliance with laws like the Americans With Disabilities Act, the gender-equity law known as Title IX, civil-rights legislation, and guidance letters from various federal departments.
Higher education is “so much more complicated than when I started,” said Robert W. Iuliano, president of Gettysburg College. Iuliano started working in Harvard University’s general-counsel office in 1994, ascending to vice president and general counsel, a role he served in from 2003 to 2019, when he became Gettysburg’s president.
Society at large is less likely to give higher education a pass.
Iuliano recalled advising on a series of controversial situations, some of which would have been hard to imagine because of the rate of societal change and advances in technology in the early ’90s: the reinstatement of the ROTC program to Harvard’s campus for the first time since the Vietnam-era protests; the ultimately successful legal challenge to Harvard’s use of race-conscious admissions; and the university’s entrance into the online-education game.
The need for a constant source of legal advice was fueled by more and more litigation, said Scott Schneider, owner and founder of Schneider Education & Employment Law, who once served as the in-house counsel at Tulane University. “It’s a ridiculously litigious space,” he said. “There’s no industry that takes on more risk on a day-to-day basis than the higher-education industry.”
It wasn’t always this way. Before the 1980s, Schneider said, “items rarely got to litigation and when it did, colleges did well.” But then attitudes began to shift about college, resulting in decreased deference everywhere, including in the courtroom. “Society at large is less likely to give higher education a pass,” Guard said.
Now, if you walk into some courtrooms and say you are representing a college, it “might put you behind the eight ball almost immediately,” Schneider said. That has manifested into a more litigious environment, several experts said, with risks emerging around everything from sexual-misconduct cases to admissions to once-unthinkable dilemmas, like whether colleges should have to refund tuition after canceling classes due to the spread of Covid. One critical development came when campuses faced lawsuits for not protecting their students, including in incidents such as the 2007 Virginia Tech shooting or the Jerry Sandusky scandal at Pennsylvania State University.
If done properly, the general counsel is an institutional steward.
Many colleges are so sprawling that legal challenges can emerge in every arena, experts said: housing law, employment law, privacy law, and on and on and on. Not to mention colleges with medical systems, which can have their own counsel’s office.
At some institutions, including many smaller liberal-arts colleges, the need for wide-ranging expertise serves as a reason not to have a general counsel. Colgate University uses a Syracuse, N.Y., law firm for most of its legal work, but also works with other law firms in more specialized areas, including immigration law.
“Liberal-arts colleges work on a different scale than larger institutions,” said Christopher Wells, Colgate’s vice president for administration. “For that reason, we are often best served by a relationship with a strong law firm with expertise in multiple areas of the law. The strongest general counsel cannot be a specialist in every area, and schools of our size generally do not have sufficient generalized [non-specialist] legal needs to fill the time of a full-time general counsel.”
At colleges with general counsels, staff numbers are increasing to manage the ever-mounting risk. Consider the University of Michigan at Ann Arbor, which had 15 lawyers and 24 legal staffers on its general-fund payroll 10 years ago. Now there are 19 lawyers and 29 staffers. In the same time period, the general counsel’s annual budget has increased by 44 percent, to $6.5 million. In the university’s health system, the number of lawyers doubled over the same time period, to 12.
The number of in-house lawyers has grown across higher ed. In 1985, the National Association of College and University Attorneys had about 2,400 members, Guard said. That grew to about 2,800 in 1997 and then exploded to about 5,000 members, including more than 3,000 who were in-house lawyers, by 2022, he found in research for his book.
Today, colleges see risk everywhere, including in the articles featured in The Chronicle’s morning newsletter, which Guard references at the beginning of his book.
“It’s hard to open that email without seeing some sort of controversy that is legal in nature” in every story, Guard said.
But the job of the general counsel is broader than just managing legal risk. The top lawyer is often also a trusted adviser and source of institutional memory; in an era of shrinking presidential tenures, a campus’s counsel may predate the current president and outlast them.
They also occupy a particularly influential position on the organizational chart. Many general counsels report directly to the president, but also have some reporting relationship with the governing board. Even if they don’t directly report to the board, they interact often with board members, especially board chairs, and regularly appear in the closed sessions of board meetings. Written communications between administrators and lawyers are generally exempt from public-disclosure laws — which can make the general counsel an especially popular person to copy on sensitive emails.
You don’t want to be captured by your lawyers. You need to recognize there’s a limit to their advice.
With this access comes influence. When done well, experts say, the job uses that influence to balance a focus on risk with a focus on what’s in the college’s best interest. “A properly functioning general counsel is steeped in the institutional values,” Guard said. “If done properly, the general counsel is an institutional steward.”
Because they serve as the fulcrum between governance and operations, the general counsel must exercise more than just technical lawyering skills, Iuliano said. “The beginning and the end” of a good general counsel is “good judgment. It’s not just good legal judgment. It’s an awareness of the institution and its values.”
Overweighting the position’s core responsibility can cause problems. “If legal advice overwhelms an institution,” that can lead to trouble, Iuliano said. It’s up to presidents and boards to place the advice from their general counsels in the proper context. “You don’t want to be captured by your lawyers. You need to recognize there’s a limit to their advice.”
Many colleges aren’t doing that, said Liliana Garces, a professor in the department of educational leadership and policy at the University of Texas at Austin. “Counsels are acting from a place of caution,” she said. That has led colleges to react to even the slightest risk of adverse reaction. For example, she cited new laws targeting diversity, equity, and inclusion policies that have prompted campuses to scrub their programs “before the bill is even enacted.”
It’s led to what Garces calls repressive legalism, where universities are acting “from a place of fear.”
Instead, a general counsel should work to shield the university’s educational goals and programs, especially around the education of underserved populations, Garces added. General counsels can “either deflect the pressure or allow” it to dictate how the university operates.
“The educational mission has to be at the forefront” of decision-making, she said. “We’re out of balance. There’s too much weight given to the risk.”
General counsels will have to walk a tightrope to navigate the coming years, experts said, as pressure on colleges continues to mount — much of it political. This legislative session, some politicians have set their sights on large swaths of higher ed’s operations; a recently proposed bill in Indiana would change tenure and promotion procedures as well as the makeup of governing boards. General counsels would play a key role in responding to and interpreting such legislation.
“There’s no reluctance from legislators to legislate and tell higher-education institutions how they should operate” at the federal or state level from either political party, Schneider said.
Societal pressure that transcends political divides also promises to bolster the influence of the general counsel. In college athletics, name, image, and likeness legislation and court cases are ongoing while a debate over whether athletes are employees rages. Lawyers on college campuses are already finding more and more of their work time occupied by these issues, and classifying another class of students as employees would only accelerate that focus.
While the future is unwritten, one thing seems certain: more lawyers. “That’s just where we are,” Schneider said.
