Having general counsel is a relatively new phenomenon in institutions of higher learning. The pressures of regulation, litigation and legislation have given rise to a new era, and institutions must know how to respond. Lou Guard, an adjunct professor at Cornell Law School, discusses the tools university attorneys need to navigate the higher education space.
Having general counsel is a relatively new phenomenon in institutions of higher learning. The pressures of regulation, litigation and legislation have given rise to a new era, and institutions must know how to respond. Lou Guard, an adjunct professor at Cornell Law School, discusses the tools university attorneys need to navigate the higher ed space.
Join Lou Guard, general counsel at Hobart and William Smith Colleges and an adjunct professor at Cornell Law School, as he delves into the legal landscape of higher education. Guard will offer insights from his bestselling book, “All the Campus Lawyers,” and discuss the tools university attorneys need to navigate the higher ed space.
Jens David Ohlin, the Allan R. Tessler Dean and a professor of law at Cornell Law School, hosts.
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Chris Wofford: Today on Cornell Keynotes, we are looking at the relatively new phenomenon of universities having in house legal counsel and what this means for legal professionals who are working in or aspire to work in the higher education space. Joining us as moderator is Jens Olin, who is the Alan R. Tesler Dean and Professor of Law at the Cornell Law School.
His guest is Lou Guard, who is General Counsel at Hobart William Smith and also Adjunct Professor at Cornell Law and co author of the book, All the campus lawyers, litigation, regulation, and the new era of higher education. Jens and Lou discuss the key legal challenges facing higher education today and discuss what may be ahead in the near and long term for general counsels at universities.
So check out the episode notes for info on the Master of Science in Legal Studies degree program at Cornell Law and a link to Lou Gard's book. And now, here's Jens Olen and Lew Gard.
Jens Ohlin: thanks so much. So Lou, thanks for being here and thanks for writing this great book. And thank you for teaching at Cornell Law School.
And, I'd love to have a great conversation with you about higher education. So, you know, let's start off with a general question. What do you think are some of the key legal challenges facing higher education today?
Louis Guard: Thanks, and uh, and yes, it is. It is great to be here and to be speaking with you. I think, you know, the last time you were peppering me with questions.
I was a student in your criminal law class many, many years ago. So, I don't know if I was more prepared then or now. So I'll let you be the judge after you could email me. My grade maybe but um, you know, this is a great topic me and my co author joyce jacobson We just love talking about this this issue the genesis for our book, um To to kind of to start to get at your question Was kind of funny.
It was one of these typical occurrences that a general counsel might have with with their college president I walked in one day for my my usual meeting and I had a bulleted list of maybe 10 different issues You To go work through with the president and it ran the gamut from a pending piece of litigation to an employment issue to an athletics issue an intellectual property issue, you know, just a whole list.
And at the end of our meeting, President Jacobson looked at me and she just kind of half joking goes, This is just crazy. We should write a book, you know It was like one of those days where all these issues were out there so that kind of I I took her a little bit too seriously and then kind of building in some of the work that I had done as an adjunct down at the law school at cornell with the the higher ed law class started to sketch out this idea and really so the first to get to your question the first half of the book Chronicles what all of these legal issues are and facing colleges and universities.
And really what we see is the, the acceleration of these issues over the past. to 15 years, so, you know, we're talking about stuff that is both probably very well known to many folks, but then maybe more a little obscure and under the radar, but all of it has a, you know, very deep and profound impact.
I think on what we do in higher education. So we're thinking issues in the civil rights area. So, such as a title 9, which I'm sure will be familiar to all listeners. Title six, which was very much an issue on campuses last year. the americans with disabilities act title seven obviously applies Um to private employers and so that includes colleges and universities as well.
So that's a whole chapter and treatment in the book Free speech and expression issues on campuses have Have been kind of a festering, area of intrigue and study. Um, and so we treat that a little bit as well. And that of course overlaps in important ways with things like title nine, title six, academic freedom.
Um, and then, you know, we focus on all the whole, um, kind of panoply of issues facing, um, The student experience and student life on campuses. So everything from, as I mentioned, athletics, legal issues to, um, the variety of ways uh, Greek life, um, student, mental health issues, and all these sort of risk areas that involve this uh, student experience and and student facing.
Interaction. so, you know, those are, that's a bucket of kind of three pretty very broad and, but very prominent areas that I, that I'm sure people have heard about. There's also issues related to admissions, you know, um, being a revenue driver. For institutions is an important, important area to focus on.
But obviously, the students for fair admission decision received a lot of national attention. So that's probably very familiar to folks and as a pressing issue. I think, going forward, we also look at governance issues a variety of others, but that's kind of the. For the most part, the playing field that we deal with in the book and that we think are, are the promising or the sort of most prominent pressing issues facing the sector.
Jens Ohlin: Before we go any further, can you just briefly you know, explain what the difference is between Title VI and Title IX, since you mentioned those, you know, phrases and we hear a lot about them in the newspaper and uh, Or read a lot about it in the newspaper and on the, on the radio. But, um, it's a little bit of a technical distinction.
Can you explain what those words actually mean? Title six and title nine.
Louis Guard: Yeah. So title nine is probably familiar to, to some extent, but is a, is a broad prohibition on discrimination on the basis of sex, right? So title nine bars discrimination on the basis of sex. That's kind of the, I think the simplest.
Explanation title 6 pertains to discrimination on the basis of race, color and national origin. So prohibits discrimination based on those protected classes. And so each of those statutes have. A regulatory infrastructure underneath them and guidance infrastructure that informs how colleges and universities comply with those mandates.
And that not to jump too far ahead in our conversation or to to any of this, but I mean, that's sort of where the the devil is in some of those details, so to speak. Right? Because it's easy enough to say. you know, thou shall not discriminate on the basis of X, Y, or Z, but how you actually, how that gets enforced and how that gets, sussed out on campuses and in courts is really, the sort of meat and potatoes, I think, of, of the Story here.
Jens Ohlin: That's great. Let's hear our first poll results
Chris Wofford: Yeah, you bet and thanks for the clarity on title six and nine because 12 of our audience are lawyers working in higher ed Not to say that the the rest of the 88 isn't made up entirely of lawyers, but we don't know but anyway Useful clarity. There you go.
Those are the results. So back to you. Yes
Jens Ohlin: Yeah, that's great to know, because I think everyone is incredibly interested in the legal issues in higher education, but not everyone has the front row seat that you do lose. So, um, yeah, that's great to have the rest of this conversation. So let's delve a little bit deeper of all of these, you know, sort of legal issues that are facing higher education and that, you know, you're dealing with directly as general counsel.
How do you think they impact students, faculty and to a certain extent, staff? And why should people in the state of California? Higher education, um, today really care about the legal issues that you're dealing with running out of your office.
Louis Guard: Yeah, I think, you know, I think the impact is, pretty profound.
Um, some people probably experience it a little more softly and subtly, than others, but, you know, just, just to start with the anecdotal and maybe move into some data points, I mean, I think people have the sense that. That legal issues, regulatory issues, um, legislative fiats or, or interaction with higher education is sort of consuming more and more of the life we live on college campuses, which is really supposed to be about the life of the mind and, um, you know, we, we begin the book with a vignette about, um, If you're a subscriber to like the chronicle of higher ed or inside higher ed or any of these publications you probably get these morning emails where they they summarize the the news of the day and it's impossible to open one of those without seeing minimally one issue that's a legal issue.
But usually most of what they're publishing about is some type of a lawsuit, some type of a governance conflict some new piece of legislation that's going to challenge, you know, the ways in which colleges and universities are conducting their affairs. so, I think it's pretty all consuming and certainly, You know, you're the way in which folks perceive that and react to it is going to depend on their kind of station within the institution, right?
I think I'm. On the faculty side, it feels a bit like, at least what I hear is that some of these legal developments can, um, perhaps be a distraction to. What they see as the, as I mentioned, the light carrying out the work of the life of the mind, the main, the core enterprise of of higher education.
I think that's, you know, a perspective. I hear I hear shared among faculty members, but certainly a very real concern that we all, we all need to deal You know, I think that. Particularly for particularly for faculty. it's hard to it's hard to talk about the faculty perspective on some of these issues without considering academic freedom.
And I think the ways in which some of these legal developments may be perceived as, you know, encroaching on academic freedom or interfering with academic freedom in some way. so I think that's a very real perspective. on the student side of things, I think look, a lot of this, a lot of this stuff, especially in the tort area, I think, really defines the ways in which institutions interact with their students.
a little bit differently, right? And so, you know, one of the things we trace in the book is the, is the evolution, this sort of tort law evolution from the early days of, of in loco parentis and institutions really having kind of the full ability to, to do whatever they want with extreme deference from courts uh, to, you know, what commentators and scholars have called the bystander era of maybe like the 80s or early 90s, where.
You know, courts were more like, look, they're over 18. They're adults. This is a really terrible thing that happened, but the college or university had nothing to do with it. We now live very much in a middle ground. We call it the caretaker era where courts are more likely to find that institutions have some duty.
Of care that falls on them, right? So institutions can't do nothing, but they also sort of can't be so over overbearing that they're controlling every aspect of the student's life. And so I think that from a student perspective, they probably feel. a little bit more of that, of that creep into their life.
And, you know, I think that could be very real. So, and then on the staff side of things, I think one of the very obvious things is that I do think you could attribute growth in, staff headcount in varying various areas to various compliance or regulatory mandates or tertiary effects of that. you know, needing more staff and in student life, for example, or, Those sorts of areas.
So I think it obviously depends on what your position is and a little bit kind of what your perspective personal perspective is. But those if I had to kind of broadly extract, I think those are the ways in which those groups are feeling some of these things on campus.
Jens Ohlin: Yeah, so it's really interesting to hear you say that, because from my perspective, as a university leader, I definitely experience, um, you know, on a weekly or perhaps daily basis, the extraordinary responsibility and burden that.
That burden responsibility that universities, um, are tasked with in terms of student life in a way that, um, you know, certainly was not there 40, 50 years ago, but even compared with 25 years ago or, um, or 20 years ago, there were all sorts of situations where, if something negative happened to someone who was, you know, a student, um, society or families wouldn't necessarily attribute a responsibility to the university to, to solve that issue in someone's life.
But today there really is more of an expectation of that, and universities, you know, have to respond to that, um, that obligation, and it's a much more complicated landscape because of that. I wanted to ask you a question about all of these, legal rules, legal principles, legal responsibilities.
Is it always kind of clear cut how they apply in a situation or are you ever, in a situation where you've got multiple legal rules, some of which are either intention or collide with each other or interact in a kind of, complicated way. And it's just not something as simple as, you know, Okay, here's the legal rule.
And it tells us exactly what we need to do. But it's more of a kind of collision of multiple legal norms or legal principles.
Louis Guard: Yeah, yeah, no, for sure. I think I think most practitioners in the in the higher ed legal space really wish it was a little more sort of rules based and just direct and to the point.
And, um, you know, I often tell folks that if, if you get an answer back from your lawyer, and it seems very direct and easy and straightforward, you may want to think twice about that for most of the stuff that we do in higher ed, obviously. some of these rules have very clear kind of guidelines, but a lot of it is, is fairly ambiguous.
I mean, you can take take, for example, what we started talking about at the top title nine and title six. I think normatively everyone can agree about kind of what. What that says on its face, but then when you get down into, the case law and the regulatory material underneath that, and you start looking at a term like deliberate indifference.
And what constitutes deliberate indifference, what kind of conduct by an institution is deliberately indifferent enough such that, you've violated title 6 that's highly fact specific, like, really fact specific. And the, and these fact patterns are. Kind of wild and all over the place, so, those situations, I think require obviously.
Extremely refined judgment. but, again, to skip ahead to some of this content really are about values, I think, of the institution. So when you're kind of in this gray area. And when there may be possible pathways that all of which are defensible and meet the meet the letter and spirit of the law, but there may be multiple pathways.
I think it's wise for institutions to always be reverting back to. What is our mission? What is our value set? And what is most aligned with that? Because that's ultimately what you're going to have to defend at the end of the day, right? So, and you're going to want that to be sort of driving you and motivating your response.
Jens Ohlin: That's very smart. And people, I mean, everyone needs to remember that a university is not A corporation. It's not a for profit corporation. The goal of the university is not to maximize profit. It's to educate students, train students and perform research. And that makes it a very special enterprise.
And that in, you know, implicates how it approaches some of these issues. So we've got a great question from Tara out there. She wants to know what tort means. And once an explanation of that for non lawyers, I can jump in and say that a tort is usually a lawsuit that's filed where there's no contract between the parties.
So you can have a contract. You can have a lawsuit, which is a contractual dispute governed by a contract. Um, but you can also have a legal dispute between two parties where there's no contract either either written or or unwritten and that would be governed by a tort. So if you're walking on the sidewalk and slip on someone's driveway or something like that, you could sue them.
And that would be a tort because you don't have a contract. with that property owner. Um, so this really, I think, is a, is a a great moment to ask you about the liability risks that universities face and how you manage as a general counsel, the liability risk. That a university faces and why are there so many lawsuits against universities to today and our universities getting sued more often than they were in the past or does it just, you know, seem that way from the, from the outside in.
Louis Guard: great series of questions. Yeah. I mean, in terms of how you manage the risk, it's, it's almost impossible. And I think when you, when you think about, modern colleges and universities, they're really, they're like little villages, right? So, sometimes when I'm talking about this topic, and then if I'm giving a slideshow or something, I will put up a picture.
of a 19th century university. I have a favorite photo from our archives here at Hobart and William Smith, Hobart in 1860. And it's basically one brick building, and then you can kind of see the chapel over on the right, and there's a couple people just sitting in front of the building, like smoking pipes or whatever.
And then But if you know our campus, you know that what's noticeably missing from it is the whole central administration building, right? Like, there was just no need for it. Then, Longfellow has a description of the 19th century university as a few, two or three large brick buildings, a chapel and a president to pray in it.
And I love combining that quote with the, with the picture I just described, because it's almost. Exactly, and I'm sure if you went back into, you know, looked at Cornell in the 19th century, you'd see a similar thing, just, just academic buildings. If you map out a modern campus today, the infrastructure, the labs, the the playing fields, the parking lots, the equipment that's used to maintain campuses, just the, the technological infrastructure and all the whole host of cyber issues that come along with that.
I mean, it's profound in its scope so that's kind of what you're trying to manage risk for and it's very difficult to do and you just kind of have to take it kind of one issue At a time and one day at a time. I think another part of your question was Around kind of our colleges and universities actually being sued more or is it perception or or what's the data?
We do have some data points to share on that. we know that there is a clear uptick in litigation against colleges and universities over the last we looked at actually 120 years of case law. We had a research associate. Thank you to Cornell Law School. Look at Lexis and Westlaw. Do a Lexis and Westlaw search, for college or university for every year between 1900 and 2021.
And what it produced is a chart that's basically like, stable For about 70 years and then all of a sudden just goes like this and then in the last decade just goes Almost straight up, right? So that tells us that litigation is up and then you know, you can United educators is is an insurance company that insures most of the colleges and universities in the united states They produce a ton of data around this question Um And so, um, looking at some of their, their data it's clear that large damages awards against colleges and universities are up and over the past 10 years and the actual amounts of those.
Damages awards are up significantly. We also found some data that, came from the chronicle that showed job announcements for office of general counsel jobs over the last 10 years. And similarly, this is a pattern in all of our charts. It's, just a strong Upward to the right trajectory of jobs from 2010 to, I think they looked at, yeah, 2010 to about 2020, um, increasing year after year, more, more announcements for new, new hires.
So, yeah, we do think, and obviously, you know, some of this may may mirror other sectors. That's for sure. But I think, some of it is very specific to higher education. And so what's causing it. There's a lot of speculation around that, right? I mean, obviously the price of a college education is going up and up and up and up.
And I think, you used to hear about the infrastructure wars between colleges or the, or the, um, you know, the climbing wall, you know, you got a new climbing wall. So we need to build a new climbing wall. I mean, I think that whole thing has sort of continued to escalate. And, and the price has gone up.
And I mean, now you're talking about something that people are really investing significant dollars in for themselves or for their children or dependents or whomever. And so when you're, you know, when you're in that kind of a position, if you suffer, Some real harm you're gonna you're gonna look to recover for that, right?
So I think that Price and cost drive some of it. I think Also going into it is a phenomenon that's been kind of well studied and documented documented and worried about which is public skepticism in higher higher education, right so people saying, you know, is it worth it to go to college or am I better off being a plumber or pursuing, you know, whatever other career path?
So I think when people are more skeptical, they're more prone to sue. And then, I mean, there's obviously the talk of, Just society in general, being more litigious and, you know, whether that's real or not, you probably know more about that than me, but I think that's probably a factor going into it, you know, just anecdotally, and this is again, part of the reason why we wrote the book is just this feeling of over the last 10 to 15 years.
It's more like. almost on a daily basis. There's an issue that requires a lawyer to kind of triage it and address it. And, um, I know my peer institutions have felt that there've been multiple uh, 10 years ago, there were, I think, two NESCAC schools that had general counsel. Now, nearly all do, except for, I think, one.
there have been several of my smaller peer liberal arts colleges in upstate New York that have added general counsel over the last 10 years. So, I mean, I think that, you know, that's a reflection of something real that's happening. These schools don't just wake up one day and say, like, we want to add a new staff member for Z.
Jens Ohlin: Yeah, no, absolutely. That's definitely, um, a real phenomenon. So, Chris, let's get to our next poll question.
Chris Wofford: Yeah, you bet. Get your phones ready. Let's get those U. R. L. S. Going on in the browser and answer this question, please. What do you think is the most pressing issue or concern for general councils in higher ed?
Couple examples here. Free speech, sexual assault, etcetera. So this is a word cloud type thing into your text. Keep it brief. One or two words, please. And then we'll stand by for the results after Yens, back to you.
Jens Ohlin: Great. Thanks so much, Chris. I'll look forward to hearing those uh, seeing those results. So question from the audience from Paul, which is a great question.
What kind of advice would you give to a university trustee who's trying to participate in, You know, managing the, you know, legal interests of the, the university and receiving advice from a, from a general counsel and for the sake of the question, assume that the trustee is not a lawyer.
Louis Guard: Sure. I love that question.
So, one of the, one of the publications that I, I often get to contribute to is Trusteeship, which is an a GB Association of Governing Boards, um, publication that they put out for trustees. And they, they have a legal standpoints column In that magazine that aims to, help trustees kind of guide trustees on on how to interact with the legal function, or what are the most pressing areas?
I think kind of going to your core role as a fiduciary, um, really, it's having an awareness and, understanding of of what the most pressing issues are facing. Highly facing the sector broadly, but then also how. Your institutions particular issues may fit into those broader trend lines. So I think that's kind of a key way to interact with your legal counsel.
Um, be asking what's what do you think is going on out there in the world of higher education? What is going on with our specific legal issues? And how how do they sort of map into that? And then I think it's just making sure you're kind of informed at the right level as a fiduciary, which is, you know, you're floating at a 30, 000 foot level.
The old phrases, um, noses in fingers out. I think that's, that's fair, you know, obviously, unless an issue directly involves, a president or a senior staff member that has a kind of direct relationship with a, with a board. I think that's a fair. Rule to stick to, but, you know, I think perusing headlines.
I mean, it sounds kind of corny, but just making sure you you have an awareness as a trustee of the headwinds that are facing the sector, from new legislation to litigation trends, and then just putting them by your institutions council and sort of saying, like, where do we land on this? You know, I get that kind of stuff all the time. And I think it's helpful for me and it's helpful for our trustees because it lets me know what they're wondering about and what they're thinking. And, if you see some coverage in the journal or whatever you read, and you want to fling it to your counsel, I think that's a good idea.
Jens Ohlin: Yeah, that's good advice. So I want to jump to the results of the poll right away because I'm seeing some trickle in and we've got a we've got a clear winner in terms of what's coming up more often. And that's free speech. I mean, a lot of the topics here. Obviously super relevant uh, diversity, equity, admissions, lots of different topics, academic freedom, but man, free speech is jumping out over and over again as a key area of, interest.
Any thoughts about, um, free speech and how universities are confronting that, topic.
Louis Guard: Yeah. I mean, that's, that is certainly the the story of, of most of last academic year, I think. And, and this year, and it's really when I've, I've looked at those before, it was kind of surprising to them, to me, maybe it wasn't it wouldn't be so much to others or to unions being familiar with higher ed, but these conversations have really been happening across the sector for a long time.
I tend to just look in my own little bubble of the last few years and certainly free speeches. ballooned or mushroomed as a, as an issue on campuses, but there were periods of this throughout the last half of the century, right? That, um, where, where these issues kind of came to the fore and certainly they, and they also interact very importantly with, with academic freedom and, the evolution of, Academic freedom as a professional norm in the early 20th century, and the institution of tenure as a means to kind of secure that academic freedom as well. So I think it continues to be an issue. It continues to be very unclear and murky and fact specific. I think, you know, like what we saw last year were a lot of questions around, expression via protest, right?
And what, what were kind of the proper, limits around protest on institutional campuses. so that was a big issue. And I think many schools over the summer took that as an opportunity. Um, To refine some of their demonstration policies and protest policies, but back specifically to speech, you know, you see that in title six, right?
Like, what's what's protected speech and what is harassment? And I think that's kind of at the core of a lot of these, debates that you see playing out and or or controversies And you know, I think former president shafik of columbia Said it very accurately. She wrote a an opinion piece for the wall street journal before She testified in front of congress and I think to paraphrase She said that she thought institutions were being asked to do something that The Supreme Court had basically kind of danced around doing for the last 200 years, which is to really clearly define this.
This line between free speech and harassment and they're being asked to do it multiple times a day and multiple different fact patterns and There's just there's more to come on this topic. It's unclear where it's going but it's not going away I think that's fair to say so
Jens Ohlin: no, it's not it's definitely not going away anytime anytime soon do you find you know in your experience?
Is there a lot of experience that courts and other, you know, institutions are, you know, judicial institutions are, you know, generally differential to the academic decisions that colleges and universities make? Or is there kind of a lot of intervention into the decision making of the, of the university?
Louis Guard: Yeah, I love the term deference because I think, there's sort of a technical legal application for the term. And then there's kind of just the general sense. And I think both are actually eroding for higher education, in some pretty critical ways. I, you know, there are still some. I think it's still fair to assume that in areas of academic, specialty, courts are going to give some, some strong deference to institutions.
Right? So, like, in a, in a 10 year case, for example, where, where an institution hasn't substantially deviated from their stated policies, where they've followed that contractual promise to the letter, um, at least in, in New York, that would be reviewed. On an arbitrary and capricious standard courts are still, um, deferential to institutions again, as long as there isn't a, you know, a, a very clear kind of, material breach of the, of the contractual term.
So, I think that's still very much alive. I think, similarly in the admissions world. there's still a fair amount of deference to institutions holding out the exception of uh, I know, I think I saw your eyes light up, but holding out, you know, for, for exception, the area of, when it comes to discrimination.
Right? So, like, I'm talking about if you're, you know, It's sort of what would be a run of the mill case of like, you find out that someone committed a crime and your policy said that you could revoke admissions and they wanted to sue you. Um, I don't think they'd have a great case. I think the court would say, yeah, they're citing it's up to the institution.
They can decide. But, in students for fair admission, the recent. Affirmative action case, we saw the court completely sidestep. I think is the appropriate word. There are probably other words, but completely sidestep sort of ignore Heisman, the question of, of deference to higher education, which was a key component of, prior decisions in this area.
And in fact, you know, prior to prior to this decision, the Supreme Court said that institutions were entitled to deference on the question of whether diversity is a compelling interest that that they want to pursue. Right? So that has clearly. eroded and I think will, will continue to erode. and then I think there's deference in the, in the sense uh, or reduce, uh, reduced kind of eroding deference in this tort, the whole area of tort law, right?
So, Where I kind of said before where courts previously would be more likely to say like, you know what, they're an adult, they made a deal with you, and it is what it is. We're not going to allow this case to proceed. There are more and more cases surviving initial motions to dismiss where courts are like, you know what, yeah, you paid 300, 000 for this.
Educational experience, and you've proffered some evidence that it might be the school's fault. We're going to let this case move forward. We'll see where it goes. I think fewer and fewer cases, and there's probably a better empirical way to prove this besides my anecdotes, but in case law research, but I think fewer cases are just kind of being dismissed out of hand and more being allowed to proceed on.
You grounds that previously, they may not have been able to proceed on. And then finally, 1 other case. I just want to highlight is, you know, look at the Gibson's bakery, you know, Oberlin college case, I mean, I think that case is an example. It's a jury trial, right? But, you know, that that's 9 or 12 people.
I forget how large the jury what the jury was. And that's in that case. But those jurors clearly, I think, had a view of higher education that was informing kind of the, the outcome and their verdict. Right? So, and that speaks to this kind of diminishing deference and, Kind of trust, I guess, if you will, in higher ed.
So I think, yeah, that's kind of how I would look at that.
Jens Ohlin: Yeah. I mean, your comments about the affirmative action cases, I think are really fascinating because you're right. The Supreme Court and the federal courts in general have kind of dropped this deference to higher education and universities when it comes to diversity issues.
But strangely enough, federal courts have always had a kind of deference to the military. On national security questions and to the executive branch in general, and those two things are colliding a little bit because in, in those, decisions on the, the affirmative action case, the courts, explicitly said, well, we're not going to touch the question of affirmative action at the military service academies like West Point.
you know, because those are a little bit different because I think they're leaving open the possibility of saying, actually, we're not going to tell The defense department. you know how important diversity is to running a modern army. They might say that and they're clearly leaving open that question, but they are willing to tell Harvard whether or not diversity is important for enrolling a college class and how they should go about ensuring diversity and and what way is inappropriate, but they're not going to grant the same level of deference possibly to a military service academy, but we'll see we'll see how that plays out All right We only have a few minutes left, but I really want to know like how are you sort of assessing the future?
Like are there topics here that are really keeping you up at night? like what do you think are like the big challenges for legal education? not today and not you know last year but like two years from now three years from now What worries you about? You know, the challenges that you're going to confront as a general counsel or your institution or your president or your board of trustees.
Like, what are you worried about in terms of the future problems that are around the corner?
Louis Guard: Yeah, that's a great question. I mean, these things are always kind of funny. And, you know, I'm supposed to say things like, Artificial intelligence or climate change or whatever. And I think those are like, I think those are real honestly, and I mean, and they will present nuanced challenges.
But then, you know, there was also this great piece by Adam Grant recently. You probably saw that was like. The headline was almost all you needed to read was basically like, if you think you can predict the future think again, you're wrong, you know, about kind of what's coming in terms of regulatory shifts down the road.
And I think that's probably most accurate. I do. I do worry a little bit about, the compounding nature of all of this stuff and the effect it will have. Across the sector, you know, I talked about adding staff and costs, and I do think that I don't think it's going away and I don't think it's getting better.
And I think that as institutions become more, more strapped with a demographic cliff, or as more and more institutions kind of get closer to, you know, To questioning their existence. I think it's going to be harder for them, to also deal with and whether all of these issues. So that's not something I particularly I'm worried about in my specific seat, but it's something that, you know, as a general counsel, I think across the sector, um, just going to the whole thing is going to kind of mushroom.
I don't want to make any predictions about, kind of the. Potential regulatory changes ahead, I guess I'll make a couple small ones. I mean, I'm, I'm pretty sure the title 9 will revert back to, you know, there was a previous there was a prior regulatory structure in place.
Under the now incoming administration, so I can only assume that that will revert back. I can't imagine that, title 6 kind of strategy would get walked back in it in any significant way. and I, I wonder a bit about expansion of some of the reasoning of the court in students for fair admission.
So, I think that's a possibility. And then I, I wonder about, um. Accreditation and and if, um, you know, regulators in the future, we'll, we'll look more, um, kind of put a little more scrutiny into accreditors and how they're interacting with institutions as a means of kind of shaping. private education. so, you know, those are, those are some things, but it's not, I don't have one particular kind of werewolf that keeps me up.
It's more, it's really the compounding of all this stuff and it's, and it's how it's going to kind of balloon and mushroom and keep doing so.
Jens Ohlin: Yeah, obviously lots of challenges and things are going to get more complex rather than less complex. So when we have about three or four minutes left, I was wondering if you could talk a little bit about what the risks of compliance issue are.
I mean, I think it all seems a little bit obscure, not just outsiders, but even to faculty and staff and certainly to students. So there are all of these You know, federal regulations are all these state regulations. the university has to comply with them. but it's not like a private lawsuit for money damages.
Like, you're not going to get sued from, you know, plaintiff's attorney. It's the government that's saying you have to comply with all these things. What's really at risk for the for the university? Like, is it a big deal if a university just kind of, you know, doesn't do a good job of complying with federal regulations, or willfully, you know, disobeys them?
Like what's, what's the consequence for a university?
Louis Guard: No, I think it is a big deal. I mean, I think, well, with some of these, with some of these statutes, I mean, title nine and title six, there are private rights of action. So you can be sued, right? Any damages in court. And I think that's a very real risk for, for many.
And I mean, just under title six last year, there were two, there's two very interesting and divergent decisions. One against MIT and one. One against or one related to MIT and one related to Harvard that I think are worth a look in that area. so I think I think like outside of kind of the the money damages courts remedies Yeah, the loss of federal funds the the potential to lose federal funds is significant For many institutions even for small ones that are are less.
Um, you know research um Focus like like my own. So I think there's that but then there's also just kind of the sheer, embarrassment, right of if that if that were to happen aside from the Aside from it actually happening in in the financial ramifications, but then there's a cost if you will to The whole investigation and resolution process, like even if you don't end up and many schools do not end up losing federal funds or have not yet, right?
But, um, there is a real, very real and serious cost to that whole process, right? Whether it's not just an attorney time, but in, you know, deans of schools time or faculty members time or other, you know, Administrators time in, managing and dealing with all this stuff. So being under federal investigation is not a, just the investigation itself can be, you know, Yeah,
Jens Ohlin: yeah, absolutely.
And being subject to an audit from a federal agency. I mean, for a small college, that could be an annoyance for a large university and audit from the department of education on some compliance issue. Could you have to hire not just attorneys, but also auditors. and that could cost the university actually millions of dollars, over many years to deal with that.
So it's no fun at all. I don't recommend it. well, Chris, let me turn it over to you , to take us out.
Chris Wofford: Thank you Dean Jens, and thank you Lou Guard for joining today's show. Listeners, check out the episode notes for info on the Master of Science in Legal Studies degree program at Cornell Law, and also a link to Lew Gard's book. Thank you again, friends, and please subscribe to stay in touch.