The mission of community colleges is clear: To provide an accessible and affordable education while acting as a workforce development source for a country in need of skilled labor. Yet, a distinct set of values is clouded by the fog of federal and state laws that govern two-year institutions nationwide.
All is not lost, thanks to in-house law experts tasked with deciphering rules related to student rights, accessibility, financial aid, free speech and intellectual property. As a strategist and legal advisor, general counsel offices create a stable and lawful environment where a college’s core mission can thrive.
This article comes from the new issue of the Community College Journal, the flagship publication of the American Association of Community Colleges since 1930.
Attorneys like Pamela Duncan, general counsel for the Kentucky Community and Technical College System (KCTCS), have access to the administrative c-suite, where they collaborate with presidents and other stakeholders. Like many of her lawyerly colleagues in Kentucky higher ed, Duncan hires out to outside counsel, working step-by-step with outside attorneys until a litigation matter is resolved.
“I also sit on the president’s cabinet, so I’m listening to each cabinet area and advising them about legal pitfalls,” Duncan says.
Duncan’s duty includes navigating the system’s 16 member institutions through an always-evolving tangle of policies and governance. For example, last year’s delayed launch of the new Free Application for Federal Student Aid (FAFSA) was worsened in subsequent months by lags in application processing.
Ongoing snafus prevented colleges and universities from sending aid packages to students, creating a volatile atmosphere from which litigation could emerge. To mitigate future problems, Duncan gave KCTCS administrators a complete rundown of legal challenges connected to the new FAFSA rollout.
Duncan also is ready for issues that require immediate attention, like a recent call from the Environmental Protection Agency about the removal of hazardous waste from campus.
“It makes the work more interesting,” Duncan says. “I told my husband that if I was a doctor, I’d be in the emergency room. When you think you have a moment to breathe, something always pops up.”
Start the process
Community college general counsels receive direct reports from departments about audits, compliance and risk management issues — an accounting that may encompass Title IX regulations or updated Americans With Disabilities Act guidelines.
For Jason Carter, vice president of legal services, risk management and general counsel at Ohio’s Cuyahoga Community College (Tri-C), a “robust investigative framework” reduces the entity’s litigation portfolio while creating a priceless culture of transparency.
“Cases can rise from ambiguity around the process,” Carter says. “There’s a lack of clarity where plaintiffs’ attorneys are looking to get a case filed or have it linger in court to get a settlement. A case may only require a response or conversation, but without that, it can result in litigation.”
In Ohio, the attorney general (AG) has oversight of all proceedings at state institutions. As a result, the AG office will select an outside firm for Tri-C, with the college technically becoming the client of that firm.
Carter’s office reviews motions with external attorneys, providing insight on an employee termination suit or a staff member’s perceived unfair treatment on the job. Recent years have seen an overall uptick in cases on political expression. Last fall, a jury rejected a former Collin College (Texas) professor’s claim that he lost his job after speaking out against Confederate statues along with the school’s Covid-19 policies.
Most higher ed lawsuits are served directly to general counsel, with that office apprising the president and board thereafter. After an external firm is appointed, Carter’s office enacts a “litigation hold” that preserves emails and other key information related to the case.
A tangled web
As personnel comprises about 80% of the KCTCS budget, most claims the system encounters revolve around employment rights. For instance, the federal Equal Pay Act requires men and women in the same workplace be given equal pay for equal work. The law further prohibits compensation discrimination on the basis of race, color, religion, age and disability.
Diversity, equity and inclusion (DEI) is another hot button for two-year institutions. Last year, a group of California community college professors sued state officials in light of DEI rules that the accusers alleged violated their First Amendment rights. The lawsuit maintained that rules “mandate viewpoint conformity” and “force professors to endorse the government’s view on politically charged questions regarding diversity, equity, inclusion and accessibility.”
The Americans With Disabilities Act, meanwhile, requires U.S. colleges that receive federal funds to present proper accommodations for learners of all abilities. Oversights are common on most campuses — even seemingly insignificant mistakes can lead to litigation, says Duncan. At one university, a trash can prevented wheelchair-bound students from accessing a sink in the science lab. In another case, a professor banned all laptops in class, except those used by students with disabilities. When asked for an explanation, the professor violated privacy by revealing that the laptops were an accommodation for disabled learners.
Students and staff across the Kentucky system are encouraged to address problems internally before bringing in outside parties, Duncan says.
“The majority will come to us first, either going through deans or chief academic or student affairs officers,” she says. “The process is in the student code of conduct. But sometimes people will jump right to the Office of Civil Rights (at the U.S. Education Department).”
KCTCS and its member colleges have also established policies and procedures regarding free speech expression. Although designated “free speech zones” are available, any outdoor portion of campus can be used for demonstrations that don’t interfere with normal college operations.
