Book details knotty business of higher ed counsel

By attorney Louis H. Guard and academic Joyce P. Jacobsen, All the Campus Lawyers (2024) is a compelling recent read for anyone interested in the law of higher education—whether as a counselor, as a client, or as a victim of higher ed machinations. I've been all three.

Guard and Jacobsen both are affiliated with Hobart and William Smith Colleges—a beautiful double campus I visited just last summer, perched atop Seneca Lake in Geneva, New York, in the Finger Lakes region. Guard is a general counsel there, and Jacobsen a past president and economics professor.

All the Campus Lawyers thoroughly covers the many facets of higher ed practice nowadays, from civil rights and labor, to intellectual property, contracting, and cybersecurity. It is a lot to see it all in one place. At an overarching level of abstraction, the book—which is subtitled, "Litigation, Regulation, and the New Era of Higher Education"—ponders how and why law has become pervasive, and sometimes paralyzing, of higher ed. 

To my reading, Guard and Jacobsen are careful to avoid a normative agenda, and rather strive to be descriptive, instructive, and sometimes even inspiring. But I came away with an uneasy feeling in the belly that law, at least in practice, has a stranglehold on the free-wheeling nature of academic inquiry that classical-liberal society associates with the "quintessential marketplace of ideas." 

If higher ed is just a business—and maybe it always was—law, from the perspective of university counsel, seems to be part of the problem: supporting the business framing with defensive practice and risk aversion, and prizing the institution over the people who constitute it and whom it serves. No doubt my perception is colored by experience.

I stop by the Geneva, N.Y., Welcome Center in July 2024.
RJ Peltz-Steele CC BY-NC-SA 4.0

Another impression I had of the book was that it is siloed, tending to view the mission creep of law in the higher ed sector to the exclusion of the same phenomenon across American life. Indeed, what business, what person does not need a lawyer to navigate the world today, even if ordinary people have to manage without, usually to their detriment. I'm not sure the problem of law in higher ed can be examined exclusively of "the legalization of American society" (meaning ubiquity of law, not blessing of lawfulness).

Furthermore, there is, to my mind and at one level, a rather simple explanation for law's infiltration of higher ed. With a hat tip to Lincoln Steffens and Clark Mollenhoff: Follow the money. The relevant question might not be why law has become pervasive in higher ed, but why higher ed has become big business rather than collective good or philanthropy. Guard and Jacobsen are too ready to take that twist of mission for granted.

Despite my nitpicks, Campus Lawyers is a worthwhile read for a fuller understanding of the relationship between law and higher ed, and especially for insight into the modus operandi of university counsel.

Here is the publisher's description:

Not so long ago, colleges and universities had little interaction with the law. In the 1970s, only a few well-heeled universities even employed in-house legal counsel. But now we live in the age of tenure-denial lawsuits, free speech battles, and campus sexual assault investigations. Even athletics rules violations have become a serious legal matter. The pressures of regulation, litigation, and legislation, Louis Guard and Joyce Jacobsen write, have fostered a new era in higher education, and institutions must know how to respond.

For many higher education observers and participants, including most administrators and faculty, the maze of legal mandates and potential risks can seem bewildering. Guard, a general counsel with years of higher education law experience, and Jacobsen, a former college president, map this unfamiliar terrain. All the Campus Lawyers provides a vital, up-to-date assessment of the impact of legal concerns on higher education and helps readers make sense of the most pressing trends and issues, including civil rights; free speech and expression; student life and wellness; admissions, advancement, and community relations; governance and oversight; the higher education business model; and on-campus crises, from cyberattacks to pandemics.

As well as informing about the latest legal and regulatory developments affecting higher education, Guard and Jacobsen offer practical guidance to those in positions of campus authority. There has never been a more crucial time for college and university boards, presidents, inside and outside counsel, and other higher education leaders to know the law and prepare for legal challenges.

Of course, it remains to be seen what remains of higher ed after the Trump Administration. Guard and Jacobsen might have accomplished the equivalent of a book about the flu on the eve of the pandemic, in which case, we'll need a revised edition sooner rather than later.