At our colleges and universities, there is always the potential for legal issues regarding stakeholders on policies, programs, activities, etc. As we know there are foreseeable problems, the critical questions to be asked are: How should general counsel be used at colleges and universities? What are some of the legal cases in higher education that require the involvement of general counsel? What is the legal issue regarding the Fisher v. Texas case?

While attending the American Council on Education (ACE) Conference in Washington, D.C., a panel of experts discussed legal issues confronting presidents at colleges and universities. The panel members included moderator and general counsel for ACE, Ada Meloy; Jonathan R. Alger, president of James Madison University; Pamela Brooks Gann, president of Claremont McKenna College and Martin Michaelson, partner in the law practice at Hogan Lovells.

One particular topic the panel spoke about was the necessity of general counsel being an integral part of the administrative leadership team in higher education. Alger, for instance, said that he brought a general counsel into his leadership cabinet utilizing the lawyer’s ability to “help spot and litigate issues.” He expressed that lawyers can be your best friends and recommended that they become actively involved with the National Association of College and University Attorneys (NACUA) for legal assistance. He says that institutions can best use lawyers by posing question, “Here is what we are trying to accomplish, how do we get there?”

Similarly, Brooks Gann said that she developed a general counsel staff position for her institution, placed the person in her leadership cabinet and allowed the lawyer to be involved with risk management issues (healthcare, fringe benefits, etc.), crisis management and sensitive correspondences. Michaelson noted that an “institution’s letters should not look like they are written by lawyers, and they should be clear and short” rather than vague and ambiguous. He also recognized that a general counsel position is really needed to address higher education issues because risk management alone is a “daunting task.” The compelling opinion of the panel was that higher education should not be any different than corporate America. According to the Association of Corporate Counsel, 75 percent of general counsels report to executive officers in the business sector, said Meloy.

Further, the panel discussed the Fisher v. Texas legal case which requires the involvement, understanding, expertise and guidance of general counsel in higher education. As context, in the Fisher v. Texas case, plaintiffs Abigail Fisher and Rachel Multer Michalewicz (both white females) applied to the University of Texas at Austin (UT) in 2008 but were denied admission. Fisher and Michalewicz filed suit, alleging that UT had discriminated against them on the basis of their race in violation of the Equal Protection Clause of the Fourteenth Amendment. In 2011, Michalewicz withdrew from the case leaving Fisher as the remaining plaintiff. UT admits applicants in the top 10 percent of each high school graduation class in Texas regardless of race. Fisher was in the top 12 percent of her high school class.

On February 21, 2012, the Supreme Court agreed to hear the case. The court may rule on the case by the spring of 2013 although Justice Elena Kagan has recused herself from the case. In support of Fisher and UT, many groups have filed amicus briefs. According to Meloy, 11 groups filed on behalf of Fisher such as the Texas Association of Scholars and the American Civil Rights Union; and 71 filed on behalf of the UT including the NAACP, Legal Defense and Educational Fund and American Council on Education. ACE filed on the basis of the University of Michigan case (Grutter v. Bollinger) and specifically asserted that “the educational benefits that come from a diverse student body are a compelling government interest and institutions must be allowed to make autonomous decisions when determining the composition of their student bodies.”

While the outcome remains to be determined, the panel provided the attendees at the session (chancellors, presidents, lawyers, chief academic officers and diversity officers) with some food for thought in terms of what the Supreme Court might consider in making a decision. The panel mentioned or inferred questions such as: How do you define merit? How should your program or admissions policy look? Why is the program or admissions policy relevant since we have an African-American president? How much deference will be given? How do you adhere to a critical mass? How many minority students are enough? Is the percentage admissions plan of the UT system sufficient? What is the educational mission of the institution? What is the possible outcome? (loss of institutional accountability, affirmative action, etc.). With Justice Kagan’s recusal, what impact would this have on the case?

Considering the preponderance of legal issues in higher education, presidents should include legal counsel as a part of their leadership cabinet. Presidents should provide training to all stakeholders associated with their campuses for preventive measures as well as improvement of practices. They should use NACUA for legal assistance and resources. They should also use the Higher Education Compliance Alliance for information and resources to comply with federal laws and regulations.

Dr. Ronald Holmes is the author of three books, “Education Questions to be Answered,” “Current Issues and Answers in Education” and “How to Eradicate Hazing.” He is publisher of “The Holmes Education Post,” an education focused Internet newspaper. Holmes is the national superintendent of education for the National Save the Family Now Movement, Inc., a former teacher, school administrator and district superintendent. He can be reached at [email protected].