‘Lawsuits Will Happen’

In their new book, All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education (Harvard University Press), Louis Guard and Joyce Jacobsen, colleagues at Hobart and William Smith Colleges, examine the myriad ways postsecondary institutions have come to interact with U.S. law. Guard, vice president and general counsel of HWS and Jacobsen, a former president of the college and current economics professor, touch on everything from Title IX and the First Amendment to town-gown relations and the business of higher ed.

They spoke with Inside Higher Ed via Zoom. Excerpts of the conversation follow, edited for length and clarity.

Q: You have excellent timing; the publication of your book coincides with Wednesday’s Congressional hearing of Columbia President Minouche Shafik over alleged antisemitism on campus. If you were advising her right now, what would you say?

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Jacobsen: Of course, we wrote the book before the war started in Gaza. But one of the hugest themes of last fall, along with some presidents having to step down, was about exactly how to handle these issues on campus … It speaks to one of the main themes of our book: how to really stay true to the mission of colleges and universities while you’re dealing with these political pressures. We walk a very fine line between trying to provide an open forum for people to actually have discussions about difficult issues and facing incredible pressures both on campus and from without of people wanting to control what people are saying. I think [President Shafik] has certainly learned how difficult it is from those early hearings. I’m sure she is getting plenty of advice right now. But I think it just shows the real challenge, and hopefully also that presidents—as happened just last week at Pomona—feel that they can step forward and say when they think lines are crossed, and when they think that lines haven’t been crossed, and that we should be allowing students and other members of the campus community to say things that can make people uncomfortable.

Q: What do you make of the broader trend of Congress trying to litigate some of these issues, especially on private university campuses?

Jacobsen: Our book talks a lot about what we imply is somewhat of an overstepping in some of these situations, that it would be better [for the courts] to stay back and let campuses deal with it. I think it actually may die out as a trend. We’ll see. But campuses also have to convince legislators that they are taking steps to deal with these issues. And I think the weight right now lies with the leaders of higher education, to signal more strongly that they are in control, and that they’re setting strong moral standards.

Q: Some institutions have been criticized for over-interpreting legal rulings, particularly around the Supreme Court ban on affirmative action last summer. For instance, Duke recently canceled a scholarship for Black students, even though the ruling applied strictly to admissions. How do you advise campuses to uphold the law without applying it beyond what’s necessary?

Jacobsen: There is that concern that if you over-lawyerize on campus that you err on the side of caution. That’s a great example— the ruling didn’t stipulate that they would have to do that, but they’re concerned about either the optics of it or that it will lead to a lawsuit. And rather than trying to think about what is the goal of scholarships like that, and how can we preserve that goal, are they taking an overly cautionary approach? That’s one of the concerns—similarly with issues about free speech—that much of it isn’t even relevant for private campuses … I think one thing our book says is that general counsels aren’t automatically telling you always to be careful. But you do have to watch those tendencies.

Q: Would you say the number of general counsels employed by universities keeps growing?

Guard: Our data points show that we are at something of a peak now. We did not look at every single school in the United States and whether they have a GC and whether they had one 30 years ago. But looking at NACUA data, that shows an increase; looking at [job] announcements, that shows an increase. Then we looked at some of the data points that are out there—including a chart that shows the number of published cases that feature a college or university as either a plaintiff or a defendant, most of the time, the defendant. The purpose of the book wasn’t necessarily an empirical deep dive on that point, but to tell the story of the last 10 to 15 years, and explain the main legal controversies that are shaping college and university life. And then to look at the impact of these shifts on the core missions of higher ed institutions: How is the law interacting with the deeper existential questions related to higher ed, whether it’s cost, or if we’re “coddling” our students, or whether higher ed is even a sustainable business enterprise?

Q: So what would you say are the biggest legal challenges facing higher ed institutions right now?

Guard: I think evolving notions of academic freedom is a big one. It’s something that obviously has a legal nexus with the First Amendment, but also with employment as it relates to faculty members, and tenure, and so on. And I think that’s something that will continue to be sussed out in the near future.

Certainly the whole bucket of civil rights statutes that we’re all very familiar with is just continuing to churn as a major area of focus for colleges and universities, whether it’s Title XI, Title VI or the [Americans with Disabilities Act].

Another evolving bucket is business issues facing colleges and universities, the way pressures in the marketplace are forcing institutions to maybe change how they’re doing things, looking at issues like mergers or consolidations or acquisitions, or schools that are looking for legacy partners or teachout agreements, or just trying maybe to monetize their resources and assets in a different way. That’s creating a whole bucket of new interesting legal stuff.

And then just the overall sort of compliance reporting; we’ve seen a rise on the state level, and on the federal level, in this need to be responsive to data, basically. We see it with the new financial value transparency reporting that we’re all going to be submitting now … Those kinds of things create a monumental task, particularly for small or mid-sized schools, to make sure you have all the data and report it correctly.

Q: To take the influx of anti-DEI legislation as an example, how can institutions navigate new laws that they may vehemently oppose or go against their stated mission? We did a story recently about colleges in Texas and elsewhere trying to get around the DEI ban by changing the name of Diversity, Equity and Inclusion programs to things like “belonging and community.” But some state legislatures are not falling for that. How do colleges uphold the law without forsaking their values?

Jacobsen: [Anti-DEI laws] are coming from a standard playbook put out there by some conservative institutions, making it a little more efficient for people who are thinking to do this. In a way, you have to kind of admire the organization on the right; I think they really caught observers on the left not paying as much attention to how you could actually coordinate these actions over states. Certainly in Texas, there’s already blowback from legislators saying they’re not following the actual meaning of the law by just changing the office or moving the staff around. Whether it spreads to other states as much, it’ll be interesting. I think we will probably see a red versus blue divide on where this happens.

That also brings up questions of whether students are going to start sorting more and more across states. We talk about that briefly with regard to abortion, and whether students will move to states where abortion is still protected by state law. Again, we don’t see those types of movements yet; the data is too new. But I think it will be interesting to see whether that is something students and their families increasingly take into account.

Q: I wanted to talk a little bit about Title IX. As you point out in the book, it was initially created to address sex discrimination in academic settings, particularly around athletics, but it’s really come to be associated so much with sexual harassment and assault on campus. How did that transformation take place?

Jacobsen: We take that “Dear Colleague” letter under the Obama administration, which expanded basically how everybody was thinking about Title IX, as kind of the starting point of this era of additional regulation. First of all, everybody had to start staffing up much more heavily on Title IX, where before most people had a part-time person looking at it. Suddenly you really had to have a Title IX coordinator who knew what they were doing. And, of course, it forced a lot of colleges to think about how they were going to set up processes … That thinking wasn’t made clear, necessarily, in the letter; it was basically a dictate.

One of the challenges we face often in academia is that programs come down and we’re told to do them without clear paths on how. Many policymakers just think, “Well, you’ll figure out how to do it.” To have a little more guidance to how you actually implement seems to me key to make sure that these changes aren’t so challenging for colleges and universities to deal with. Because of the seesawing that has gone on with Title IX, the changes in the Trump administration and then waiting to see what’s going to happen under Biden, it’s been very challenging for colleges to think about—particularly for how to handle cases in process.

Q: What would you like to see in the Biden rules, which are expected very soon?

Guard: I can appreciate that the process of an agency making regulations can be a long, drawn out one. And I think that that can signify thoughtfulness and deliberateness and an earnestness that comments and concerns are being seriously taken into consideration and will be implemented. So what I would hope for is some sense that many of the changes over the past 10 or so years that constitute what everybody’s called the pendulum swing could be all sort of incorporated in a way that maybe does lend a little bit of stability and finality to the sector moving forward.

Q: I’m wondering if you have any advice about how institutions, particularly public ones that have to uphold the First Amendment, can protect free speech while also ensuring the comfort and safety of students and faculty?

Jacobsen: I think there are ways to set up ground rules: that it’s OK to protest—particularly outside venues—but if you come inside, to the point where you’re disrupting the ability of the speaker to talk, then we can take you out. It may be hard in the heat of the moment to maintain them, but if you try to stop it ahead of time by setting up clear guardrails of how we’re doing it—and then maintain them consistently across all forms of speech—it can be done. The problem is everybody has been trying to do this a little on their own. And coordinating across campuses, on both the left and the right, of saying what these guidelines should be, is an area that maybe we have not spent enough time on in higher ed. Now is a time where the more we can coordinate at the national level, through our professional organizations, to come up with guidelines, would actually be a helpful process.

Guard: It is virtually impossible to always be right. I just don’t think any institution wants to or should necessarily be in the position of constantly judging, “Is this within the realm of free speech, or academic freedom?” We’ve seen what can happen when we try to over-legalize decisions that are really intuitive and guttural and have an obvious answer. So I think an awareness of the legal parameters is helpful. But then when it comes to free speech and academic freedom questions, a clear understanding of your institutional values, and your community, and ensuring that that community is a space where all people can enjoy their educational experience and benefit from the educational program—I think that’s paramount.

Jacobsen: Lou makes a good point: you can’t always be right. This is the challenge: How do we create a society where you’re allowed to make a mistake and say you’ve made a mistake, and move on from that? We’re all human, we don’t always call these things correctly. It’s very hard in the current environment to be a leader, because one misstep, and you could be out. So I think it’s challenging, but we have to move, hopefully, to a place where people understand—and in a teaching environment in particular—that we can learn from these mistakes, we can discuss them, but we shouldn’t necessarily have heads roll every time something goes wrong.

Q: It sounds like a key characteristic you would want in a general counsel is not just knowledge of the law but a kind of flexibility. You spend the second part of your book talking about the new era of the general counsel. How has that role evolved?

Guard: Obviously, the primary job of a general counsel is to advise on what the law says. Most of the legal environment that higher ed lives in is considerably gray. We live in a world of guidance, of regulations that are open to interpretation, of nebulous standards on questions like academic freedom and free speech, of blurry lines. So in that environment, I think [you need a] clear understanding of the law, but also a clear understanding of institutional values and imperatives, and how those things marry together. And how you can be a strategic consultative partner to your senior staff colleagues and institutional leadership and not a detractor.

Jacobsen: You can’t make all your decisions trying to avoid lawsuits, because lawsuits will happen. So you think about how to mitigate them, but you can’t avoid them completely. People often come in and say, “We’re going to sue you!” and you just have to let that roll off of you to some degree, because yeah, some will, and some are not actually going to and some actually don’t have any grounds for a suit. You can’t let that drive all your decisions as a school.