Chronicle of Higher Education Op-Ed: The Lawyerization of Higher Education, by Louis H. Guard (Vice President & General Counsel, Hobart and William Smith Colleges) & Joyce P. Jacobsen (Former President, Hobart and William Smith Colleges; Google Scholar) (Co-Authors, All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education (Harvard University Press 2024)):
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 data … show a strong uptick in lawsuits beginning in the early 2000s. … 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. …
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.
