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Trusteeship Magazine

Concerns and Forecasts (and Perhaps a Surprise) from Campus Lawyers

By Lawrence White
January/February
2013

Like many other higher education lawyers in this country, I work at an institution that belongs to the National Association of College and University Attorneys. NACUA, which serves more than 1,700 campuses employing over 4,000 lawyers, recently convened its third biennial General Counsel Institute in New Orleans. More than 100 senior practitioners and leaders in our field attended. To facilitate the discussion, the NACUA staff circulated a questionnaire in advance asking attendees to identify their three principal professional concerns and the top three trends they see in the practice of higher education law. Their collective answers are interesting, sobering, and in one respect surprising.

Survey respondents identified “regulation and compliance” as their top concern. One lawyer drew an analogy between campus compliance and “changing the tires on a moving car.” Another plaintively posed a rhetorical question commonly heard among campus lawyers: “Are we becoming so focused [on] and attentive to regulatory compliance that we do not have any time left to engage in [our] core mission?” Compliance—a subject of enormous operational and legal significance—will be the focus of upcoming articles, including my column, in future issues of Trusteeship; for now, suffice it to say that nothing causes your lawyers more anxiety than the specter of a new statutory or regulatory mandate unknown to anyone on campus until an enforcement agency comes calling.

The chief legal officer on your campus also worries about student issues, particularly student safety issues: students suffering from behavioral or emotional dysfunction, students who consume banned or regulated substances in excessive amounts, students who travel to dangerous parts of the world. The general counsel worries about the tension between the goal of promoting student diversity and increasingly complex legal restrictions on the tools that promote diversity most directly and most successfully.

In addition, the general counsel frets about time management. One lawyer described the struggle to cope with “overwhelming volume and real fear of missing something,” a capsule-sized job description that undoubtedly covers presidents, provosts, and other senior administrators as well.

When college and university lawyers peer into the future, they see unsettling trends that affect both the mission of the institutions they represent and their own jobs. They perceive new pressures on the part of their institutional clients to move, in the words of one survey respondent, “from an academic model to a business model” by outsourcing services, commercializing intellectual property, “looking for new ways to make money” by entering into entrepreneurial agreements with for-profit ventures, and increasing revenue through online education—all of which, needless to say, are legally intensive strategies that place new burdens on an institution’s lawyers. At the same time, lawyers worry that their offices will be constrained by shrinking legal budgets, requiring them to make do with fewer staff members, reduced budgets for engaging law firm specialists, and pressure to spend less on office technology.

So what’s surprising about the survey results? At NACUA’s General Counsel Institute, one commonly overheard hallway comment was that higher education legal practice has never been more attractive nor drawn a higher caliber of practitioner than today. Compared to our peers in other segments of the American legal community, we love our jobs, respect our clients, and derive enormous professional satisfaction from what we do at work. When an opening occurs in a campus legal office, hundreds of candidates apply, many with extraordinary credentials and impressive experience.

Your institution’s lawyers are busier and more stressed than ever. Like faculty members and administrators everywhere, they struggle with diminishing resources, growing professional pressure, and the realization—if they didn’t know before—that the resources they are losing now are unlikely to be recouped at any point for the rest of their careers. Your lawyers are nevertheless content to do the work they are given and proud of the role they play at their colleges and universities. As board members, you can anticipate that campus legal services, against the odds, will continue to only get stronger.

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