Chat with AGB Board BotThe premise of a regular column on law in Trusteeship magazine is that boards should have knowledge of the major legal issues facing colleges and universities. This premise entails two separate questions. First, why is this true? And second, what are the major legal questions that boards should ask?
For the first question, I suggest two reasons. Boards have the ultimate legal authority to govern colleges and universities. Boards retain some direct decision-making authority, such as the power to determine the mission, establish governance policies, approve budgets, hire the president and sometimes other officers, approve certain contracts, and in some institutions grant tenure. Other operational decision-making is delegated to the president and other officers and constituencies. For this delegated authority, the board has a fiduciary duty of oversight.
In these roles, the board is effectively making or overseeing decisions. When these decisions implicate legal issues, as many of them do, the board (and senior leaders) should understand the basic legal principles. Advice and counsel on legal issues informs and improves decision-making.
Second, beyond decision-making, boards set the strategic direction of the institution and share their expertise. Boards have a role and responsibility to support the mission, “see the future,” identify trends, establish a roadmap for good outcomes, manage risks, audit finances, remedy problems, and work for the common good. As with decision-making, legal issues are part and parcel of this oversight role of setting direction and providing advice. Starting with orientation, boards should understand legal principles, trends, and risks that affect the health and future of the institution.
With all of the caveats that go with any such list (including that it oversimplifies and omits important and ever-changing topics), I have selected 10 legal questions that, in the summer of 2021, boards and senior officials should ask so that they can exercise their decision-making and oversight duties.
- What is the legal meaning of fiduciary duty? How does fiduciary duty law affect the behavior and operations of the board?
- How is the institution responding to the legal issues raised by the pandemic? This includes whether vaccines can be mandatory, ADA accommodations, liability and immunity, the legal effect of state and federal regulatory guidance, and compliance with conditions on funding.
- What are the legal and ethical issues related to racial justice and anti-racism? This includes the legal underpinnings of diversity, the requirements of Title VI and Title VII, how to respond to hate speech and other incidents of bias, race-restricted scholarships, affirmative action, and policing issues. How can the law and lawyers help us right wrongs and do good and not just defend us against claims?
- Do our policies and practices comply with the First Amendment (for public institutions) or with our policies on freedom of expression (private institution)? What is the legal meaning of academic freedom?
- What are our risks related to federal funding and the False Claims Act (mostly arising out of federally sponsored research, financial aid and, for some institutions, health care)?
- What is the changing law on foreign influence? Have we received allegations of wrongdoing?
- What are our policies on conflicts of interest, including for board members?
- What are the legal challenges related to student mental health? What are our legal duties to students and third parties?
- How are we complying with Title IX? What changes in the law are likely?
- What are the current legal challenges in labor and employment law? This includes FMLA, FLSA, ADA, layoffs, retaliation, discrimination, tenure, hiring and retention, benefits, and unions.
Beyond this top-10 list, what are the emerging trends in the law as they affect our institution’s litigation, international activities, immigration, privacy, data security, intellectual property, compliance, risk management, insurance, contracting, and other legal topics not on this list?
For all of these questions, boards and senior leaders should seek advice and counsel from institutional lawyers to facilitate good decisions and meet their fiduciary duties.
Steve Dunham, JD, is the vice president and general counsel for Penn State University.