Chief Academic Officers are used to being tied to their email inbox, and one of the things you likely read on a daily basis are compendia from the higher ed press, much of which is filled with stories related to legal complexities in some form or other on campuses nationwide. Whether it is a new high-profile lawsuit, a debate over free speech, a contract dispute with a president or coach, a governance squabble, a set of new regulations or guidance, or new proposed legislation that would require institutional compliance, the legal environment is now inextricably tied with higher education.

Our recent book, All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education [link to https://www.amazon.com/All-Campus-Lawyers-Litigation-Regulation/dp/0674270495/] (Harvard, 2024), tells the story of the current and trending legal controversies embroiling American higher education and their evolution over the last several years. Much of the inspiration for the book came from our own lives. One of us (Jacobsen) was the Provost and Chief Academic Officer at Wesleyan University before coming to Hobart and William Smith Colleges as President. The other of us (Guard) is the General Counsel at Hobart and William Smith Colleges and has spent many an hour in meetings with the CAO. Here are some points for you to consider regarding your relationship with your legal Counsel, whether inside or outside the institution. Of course, we also think you should consult our book for more advice, as well as to consider the wide range of legal and quasi-legal issues that you either already deal with or may deal with in the future!

Civil Rights on Campus 

At the top of the list of campus civil rights concerns over the past 10 to 15 years is Title IX. From its passage in 1972, the enforcement of Title IX’s prohibition of discrimination on the basis of sex has evolved through a series of detailed guidance documents and regulatory shifts that has continued into this year. While many Title IX matters involve only students and then generally are not under the CAO’s purview, when a Title IX matter involves one or more professors, or staff members under the CAO’s purview, it will quickly move to the top of your watch list. Often others on campus will know about the situation, and you should immediately consult with the GC both to understand your responsibilities and to understand what can and cannot be shared with curious campus constituents.

Other civil rights laws also affect campus, including Title VII and its prohibitions against employment discrimination, and Title VI and its prohibition against discrimination on the basis of race, color, or national origin (including shared ancestry). The CAO will be involved if instances of antisemitism and/or islamophobia involving professors or staff arise. The breadth of the American Disabilities Act on campus is considerable, and its reach often extends to issues including academic accommodations and physical campus accessibility for both students and faculty where the CAO may often be prevailed upon to become involved.

Free Speech and Academic Freedom 

Campus counsel often serve as thought partner to the CAO for understanding the legalities and formulating responses to specific speech or expression issues that involve students’ and professors’ actions inside and out of the classroom. For example, in the case of Meriwether v. Hartop, the Sixth Circuit Court of Appeals, relying in part on academic freedom constructs, upheld the right of the professor in that case to refuse to use preferred pronouns. While most such cases do not proceed this far in litigation, legal counsel can advise CAOs regarding overall strategy in light of the law, institutional policy, and institutional values.

Academic Governance

Governance controversies—ranging from shared governance disagreements with the faculty to tenure denials —are also areas where general counsel might provide legal advice to help develop actions and responses for when the CAO will be speaking with faculty leadership or with aggrieved individual professors. While many of these issues generally do not move to litigation, general counsel can help the CAO navigate internal review processes and can clarify what information can and cannot be shared in case they do.

Still More Issues…

There are many other legal controversies facing colleges and universities that you may not have to confront as CAO, depending on your specific purview and the nature of your institution—but many CAOs end up becoming presidents, at which point all of it is in your purview! You may want to take the time now to learn more about the multitude of other rapidly evolving legal controversies facing colleges and universities, including issues related to student life (including campus mental health issues, and study abroad safety), college admissions (legacy admissions bans, anyone?), institutional advancement and giving (say hello to gift acceptance and naming issues), and legal issues in dealing with local municipalities and communities, such as zoning controversies and payments in lieu of taxes. Also, demographic and economic shifts in the higher education sector are spurring innovative and novel ventures that often require legal attention: Mergers, acquisitions, closures, shared service arrangements, consortial contracting, and group purchasing are all evolving legal areas in higher education.

Above all, a partnership

An effective general counsel must appreciate how each constituent part—student, parent, faculty, staff, alumni, local community—feeds into the whole. In so doing, they must also understand how quasilegal concepts such as shared governance, academic freedom, and academic deference bear on the issues at hand, and they must understand the institution’s values. And you as CAO should be an active partner in this relationship in terms of helping counsel understand your institution’s context and peculiarities. You may understand better than counsel how the university tenure and promotion committee or the curriculum committee actually operates, and can help counsel see how their discussions with faculty members in those settings will be more effective if they are aware of staff and faculty views regarding shared governance and faculty responsibilities.

Written by

Lou Guard and Joyce Jacobsen