Trusteeship - March/April 2021 - 10

LEGAL STANDPOINT

Change and the Law on Campus

C

HANGE is generally considered a
good thing. New administrations
in Washington trumpet the initiatives they intend to implement
in the first 100 days. Annual goals for executives are plans for change. The concept that
a " crisis should not be wasted " (attributed
to Winston Churchill) suggests that even
crises can create conditions for constructive
change. " Change management " is a recognized leadership skill.
Constructive change at a college or
university can affect all parts of the institution's operations, including governance,
strategic plans, policies and procedures,
students, faculty, compliance, risk management, and even the mission. Recent
initiatives announced by higher education
leaders include plans for addressing racism
and increasing diversity, climate change
and sustainability, cost cutting, revenue
opportunities, access and affordability, student safety, culture, and core values.
What does change have to do with the
law? No one person or office " owns " institutional change. But the law and lawyers
are at the center of change at colleges and
universities.

1. Acknowledging the many caveats and
exceptions, nevertheless, in understanding
how law affects change, it is important to
recognize the scope of how the law affects
institutions. This includes understanding
that  " law " on campus includes (a) statutory,
regulatory, and judicial rights and duties
(which are interpreted and applied by
lawyers and the legal system), (b) private
ordering of relationships (contracts and
entities), (c) policies, procedures, customs,
and practices that define behavior, d) pub10 TRUSTEESHIP MAR. APR. 2021

BY STEVE DUNHAM

lic policy and ethics that determine rights
and responsibilities, (e) faculty and other
employment contracts, (f ) institutional
duties to students, and (g) the institution's
mission, core values, and culture that
define legal relationships and duties.
2. The law and lawyers " own " a significant part of the tools of change. Consider
the simple case of a statute, regulation,
or judicial interpretation that requires an
institution to do X. If the institution wants,
instead, to do Y, it must " change " the law or
argue that the law does not really require X
but that, properly interpreted and applied,
Y is ok. If the argument is to be made in
court, lawyers are required. If the desired
outcome requires a change in legislation
or regulation, lawyers are useful or necessary in drafting, interpreting, and applying
new legal language. If the change can be
accomplished only by engaging with a third
party-for example, convincing a counterparty that a contract means Y rather than
X-again, lawyers can be useful or necessary in negotiating the " change. " Take this
simple example and multiply it by the legal
activities identified in paragraph 1, above,
and it becomes clear that the law and lawyers are at the center of change on campus.
3. In addition to assisting constructive
change on campus, the law and lawyers also

help institutions avoid mistakes that make
change more difficult. One of a lawyer's core
duties is to provide advice and counsel about
the risks of change. This role can be misunderstood as impeding change and it causes
some to characterize lawyers as negative or
risk-averse. Properly understood, however,
this proactive role can help an institution
avoid or mitigate risks, make good decisions, and protect its reputation. This positive legal role facilitates the desired change
with the fewest negative consequences and
the best opportunity to succeed.
4. The law and lawyers are central to the
changes required for colleges and universities to address the major challenges
currently faced by higher education. A
partial list of these challenges includes:
(a) Addressing issues of racial injustice
[See " Racism and the Law on Campus " in
Trusteeship, November/December 2020.],
(b) Changes resulting from the new administration in Washington, which will likely
include attention to sustainability and
climate change; rollback of Title IX regulations; rescission of immigration rules; and
changes related to federal funding and
financial aid, and (c) Responding to financial pressures, including cost cutting, mergers, and dissolutions. All of these challenges
have significant legal components.
Board members and senior executives should consider their lawyers' roles
as change agents as they make plans to
strengthen their institutions for the future.
Steve Dunham, JD, is the vice
president and general counsel for
Penn State University.
Email: ssd13@psu.edu.

SHUTTERSTOCK/ LIGHTSPRING



Trusteeship - March/April 2021

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