Kathleen Curry Santora, chief executive officer of the National Association of College and University Attorneys (NACUA), cites collaboration among institution lawyers and chief financial officers as essential for addressing the heavy lift of increased regulation of higher education institutions.
Jonathan Alger—currently senior vice president and general counsel for Rutgers, the State University of New Jersey, and NACUA board chair—will take the helm as president of James Madison University, Harrisonburg, Virginia, in summer 2012. As has been true at Rutgers, his vision for leadership includes ensuring that business officers and lawyers are included broadly in strategic and policy discussions.
By Mary Bachinger
BACHINGER: What trends with regard to campus legal issues have emerged in recent years that are of greatest concern to your members?
SANTORA: No matter how it may be staffed or organized, what has become evident across all our membership categories is that compliance is a chief concern for college and university campuses. Today, the breadth, scope, and sheer volume of federal regulations are making compliance efforts more challenging than ever.
ALGER: When we talk about compliance and risk management, it can't simply be the job of the lawyer or the business officer. People all across campus must be involved. It really is the role of presidents and senior leaders to set the tone about the importance of compliance and how these responsibilities are spread throughout the institution.
BACHINGER: What other legal trends require significant attention from campus leaders?
SANTORA: At least two other evolving concerns relate to dramatic advancements in technology and the growth in international programs and activities among U.S. institutions. With regard to technology, new products and applications create opportunities and provide new ways of doing business; yet, these new technologies raise a multitude of associated legal issues with regard to data security and privacy.
ALGER: Ironically, as we become more efficient with technology, the day-to-day legal work related to such matters as e-discovery, Internet security and privacy, and copyright law increases.
BACHINGER: You also mentioned the growth in international activities and the associated legal impacts for institutions. Can you expand on this?
SANTORA: Increasingly our members are called upon to provide guidance about operating in foreign countries. These activities cross a broad range of legal issues, including employment, taxation, immigration, real estate, and business operations.
ALGER: Like most other sectors, higher education is now operating within a global economy, which means we have to consider the regulations and protocols of doing business all over the world. This provides an exciting opportunity for many institutions, but it can be daunting to try to stay on top of all the legal questions and risks.
BACHINGER: What else is of growing legal importance to U.S. colleges and universities?
ALGER: We've seen increased emphasis on governance and accountability standards. For instance, the fiduciary responsibilities of board members have increased on many fronts, and that has implications for the lawyers and business officers who must provide board members with information on a range of topics. When we talk about new business models that include more entrepreneurial approaches to educational programs and outreach, this increases the scope of associated legal concerns.
BACHINGER: What kind of legal concerns?
ALGER: Today higher education institutions are pursuing a wide variety of collaborations with other entities such as corporations, other educational institutions, and community organizations. All of these approaches require careful thought about how to identify and manage conflicts of interest and commitments that may emerge.
Institutions of higher education are quickly moving away from the image of the isolated ivory tower and transitioning into what I call the engaged college or university. While these are positive developments overall, once you start moving into more entrepreneurial partnerships and collaborations, you have to think through the legal implications and the compliance challenges of how to manage them, both from a legal standpoint and from a business perspective.
BACHINGER: How have budget challenges affected the role of general counsel?
ALGER: Because of budgetary pressures, but also in light of larger trends affecting higher education more generally, we've seen an increased emphasis on accountability and assessment, both internally and externally. We are all forced to demonstrate the value of our services. Are we as effective and efficient as possible? Because we are working to protect the core academic missions of our institutions, it's critical for us to identify potential problems before they lead to litigation. That puts a premium on what I call preventive lawyering—anticipating challenges and risks and dealing with them before they become big problems.
BACHINGER: How has NACUA responded to these trends?
We've seen an increased emphasis on accountability and assessment, both internally and externally.
—Jonathan Alger, NACUA board chair
SANTORA: As important as providing resources to keep our members informed, we are committed to developing resources to share with administrators across campus. We do this through NACUA Notes, which are short summaries of legal issues intended for wider readership beyond college and university lawyers. We also host virtual seminars to allow members to bring other administrators into the room to hear discussions about pressing legal challenges.
In addition, we provide legal-issue panels at other association conferences, including each year at NACUBO's meetings. Most recently, we are thrilled about the launch of the Higher Education Compliance Alliance Web site, which debuted in February 2012.
BACHINGER: What was the impetus for this resource, and what does it provide?
SANTORA: The idea grew out of member surveys and NACUA board meetings where it became clear that compliance is among the biggest challenges. In fact, when we looked at the scope of compliance concerns, we realized that the general counsel was not the only campus entity feeling this pressure.
Because compliance is not the sole responsibility of one individual on campus, all senior administrators on campus need to take responsibility to be informed. We began by talking with some of our higher education association counterparts about how we might collaborate, and we came up with the idea of creating a Web-based clearinghouse. Anyone can visit the site (www.higheredcompliance.org) to view the growing compilation of compliance resources, tools, and best practices. NACUBO has been a wonderful early supporter of this effort, providing great advice throughout the process.
ALGER: Especially with regard to compliance, many issues emerge during the heat of a crisis where an immediate response is needed. Rather than having to reinvent the wheel, campus leaders can go to this Web resource to learn about the rules and regulations and what are best practices in terms of programs or responses to various compliance responsibilities.
BACHINGER: Going forward, what issues do you envision will receive the lion's share of attention with regard to external scrutiny of higher education institutions?
ALGER: Compliance responsibilities are not going away, and from my experience, they're increasing at every level. Many folks in higher education still haven't completely come to grips with the current emphasis on accountability and assessment of the value of postsecondary education.
In the past, perhaps, people took that for granted or assumed that our institutions were adding value. Of course we're producing students who are going to be productive members of society. Now we're being asked to demonstrate in concrete ways that we really are producing outcomes that matter. That has many implications for higher education business officers and lawyers, and it will for years to come.
SANTORA: Precisely because of the flurry of increased regulation and the fact that there's simply much more law for all of us to understand and digest, greater education is needed across the different constituencies on our campuses. This makes it all the more important for NACUA and NACUBO to anticipate key areas where our members need more support and additional resources.
CFOs and general counsel need to work together to develop strategies to deal with institution legal and compliance obligations in a cost-effective way that still protects the financial and reputational interests of the institution. The more collaboration we have in a collegial, supportive atmosphere, the better for our institutions.
MARY BACHINGER is director of tax policy at NACUBO.