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Trusteeship Magazine

Legal Trends and Hot Topics

By Steve Dunham
September/October
2017

Free speech, civil rights, and governance were among the top issues for discussion at the summer meeting of the National Association of College and University Attorneys in Chicago. The meeting is an opportunity for higher education lawyers to share their thoughts on legal trends and hot topics. Based on the agenda and hallway discussions, I selected 10 topics to highlight.

1. Free speech. The topic of the plenary session was “protecting free expression and preserving inclusivity.” Other topics of discussion included religious liberty, civility, student activism, academic freedom, social media, and microaggressions and trigger warnings.

2. Civil rights and discrimination. This topic remains, as it has been for more than 50 years, in various and changing forms, one of the most important areas of law and public policy affecting higher education. Title IX remains near the top of the current list, along with digital accessibility, religious liberty, affirmative action, reasonable accommodations, transgender students, and race and campus police.

3. Student affairs. Legal issues relating to students have always been front and center in higher education law, so it is hard to call this a trend or hot topic. Current topics of interest include the Clery Act, behavioral issues, fraternities, internships, immigration, and study abroad. One of the interesting hallway questions was whether there is a trend back toward in loco parentis rules.

4. Labor and employment. As with student affairs issues, this area is hardly new, but legal issues related to employment are constantly changing, and their importance remains paramount. Key topics include health care reform, overseas staff, Office of Federal Contract Compliance Programs, retirement litigation, and union organizing for graduate students and adjuncts.

5. Compliance. Interestingly, for the first time in years, compliance appears somewhat lower on the list of hot topics. The meeting included sessions on compliance self-audits, financial risk, big data and HIPAA, cyber risk, health care, and research compliance. While one might speculate that the changes in Washington have resulted in reduced emphasis on compliance, it remains critically important and is one of the major subjects that keep higher education lawyers up at night.

6. Governance. College and university lawyers increasingly are focused on broad issues of governance. Some board members and senior executives may not view these topics as “legal,” but most lawyers do. The issues include tensions between the president and the board, what to do when the client rejects the lawyers’ advice, challenges when the president is under fire, fiduciary duty, and the timeless “who is the client?”

7. Research and intellectual property. Legal attention to revenue opportunities from entrepreneurial activities is increasing. Topics include copyright, incubators, accelerators and venture funds, faculty startups, and licensing.

8. Lawyers and law office management. An interesting new topic is the increasing use of data and benchmarking to evaluate law offices, including cost cutting and other efficiencies. Other topics include media training, technology, and time management. And cutting through many of the substantive agenda topics is the always relevant topic of lawyer ethics.

9. Business law. This is not a shiny new object or the next new thing. It is the timeless importance of the role of lawyers in the business of the college or university. Current topics include real estate projects, financial reporting, legal entities abroad, antitrust, public-private partnerships, and doing business in other states.

10. Something unexpected that will become the next hot legal topic after an unpredictable crisis or event. One takeaway for board members and senior executives is the importance of talking with lawyers on a regular basis not only about current litigation and immediate controversies, but also about the trends and hot topics on the horizon. You might ask your lawyers in regular meetings or more informally for their top 10 list of legal challenges (and opportunities). Such conversations help the lawyers provide counsel and advice and help you in oversight, decision making, and leadership.

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