Neal Hutchens
When higher education, even when it works well, it's very messy. It is a glorious chaos, and that's when things are going well. And if you take too much of that chaos away, you may get a lot of people who are very compliant. They'll just kind of go the way that you want them to. But at the heart of it, how much does it take away that you're hurting that innovation. That, you know, when colleges and universities work, they often don't work well on things. But when it goes right, it can be really life changing for individuals.
Scott D. Schneider
Hello and welcome to Campus Docket, a Volt podcast about the legal challenges reshaping higher education. I’m Scott Schneider, attorney and adjunct professor at the University of Texas School of Law. And I’m joined by Eric Kelderman, senior writer at the Chronicle of Higher Education. Each episode, we’ll unpack the key legal developments that matter to higher ed leaders from student rights and faculty contracts to DEI lawsuits and government oversight. Let’s get into it.
Eric Kelderman
Hey, welcome to Campus Docket again. I'm Eric Kelderman, senior writer at the Chronicle of Higher Education. Scott, how’re you doing, man?
Scott D. Schneider
I'm senior lawyer in Austin, Texas. I'm doing great.
Eric Kelderman
Senior lawyer, I like that. You should put that on your business card.
Scott D. Schneider
I think the white beard is a dead giveaway.
Eric Kelderman
Well, we've got some interesting developments in the world of higher education legal issues this week. What do you want to talk about, Scott?
Scott D. Schneider
Well, I think, though, I thought it was pretty interesting. This lawsuit out of Tennessee challenging, I guess, the Hispanic serving institution category. I've gotten a lot of questions about that from clients about how that fits in with the Dear Colleague letter. Do you have any thoughts about that lawsuit?
Eric Kelderman
It's really interesting because as you know, as you may know and listeners may know, it's not only the state of Tennessee that's suing, it's this group called Students for Fair Admissions. This was the group that was behind the lawsuit that resulted in the Supreme Court banning the use of race in admissions. And the argument here, if I could boil it down, I guess, is that the state and SFFA are arguing that to be a Hispanic-serving institution, college has to have 25% of its students who identify as Hispanic. In the state of Tennessee, there are actually lots of Hispanic students, but no single institution in the state qualifies as an HSI. And so the argument there is that 25% bar creates some sort of incentive for colleges to enroll more Hispanic students, which, I guess, in essence violates the Supreme Court's ruling against trying to do that. I don't know, Scott, do you have any thoughts about how this is going to play out?
Scott D. Schneider
Yeah, I don't. It's an interesting issue. And here in Texas, there are obviously a lot of schools, universities that benefit from that designation. And look, they've asked for counsel on this. I go, in terms of institutional compliance, this, coupled with the Dear Colleague letter, raises some interesting issues. So, we'll just have to see how it plays itself out.
Eric Kelderman
Yeah, the other thing that's happening that I'd like to hear your thoughts on, not long ago we did an episode with Gabe Feldman on Name, Image, Likeness and this House settlement, nearly three billion dollar settlement between former college athletes that will result in current college athletes essentially getting paid to be athletes at these big D1 programs. Just five days after the settlement happens, we see a group of women filing a lawsuit saying the money isn't being split fairly and it should be subject to Title IX laws. I know you have strong thoughts about how this might work or not work.
Scott D. Schneider
Yeah, look, there will be undoubtedly a number of appeals that are filed with respect to the settlement. so we'll see how that plays itself out. I mean, this issue is obviously an interesting one. And the nub of it really comes down to if you look at the distribution of funds pursuant to the settlement agreement and the campus announcements about how they intend to distribute these funds, they disproportionately go to primarily men's football, but to male student athletes. And the argument is that that violates Title IX, because there is a provision in the regs regarding Title IX that says, financial assistance and grants and aid need to be distributed in a way that's proportionate to participation rates. So if you have 50% female student athletes, 50% of this money, roughly $10 million should be going to female student athletes. The counter argument to that is, well, this isn't financial assistance.
Eric Kelderman
All right.
Scott D. Schneider
This isn't a grant in aid. This is compensation. And there are a different set of rules that apply in that setting. I don't expect, by the way, in this posture, that'll be an issue that'll be litigated. You've seen the Biden administration say one thing, the Trump administration say something else. It'll be an issue that's going to be litigated on a go-forward basis. In this posture, I don't see
this argument landing in a way that will set aside the settlement. But I also don't practice in the Ninth Circuit Court of Appeals. So take it for what it's worth with a healthy grain of salt.
Eric Kelderman
Yeah, very good. All right, well, we've got a great guest coming up today, so let's get into it.
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Eric Kelderman
So today we're joined by Neil Hutchins, professor in the Department of Educational Policy Studies and Evaluation at the University of Kentucky. He has both a JD from the University of Alabama and a PhD in education policy from the University of Maryland, which means that he must be a real glutton for punishment. He's been through grad school twice. And before we get started though, Scott and I, regular listeners to Campus Docket, all six of them, know that we like to start with a sort of icebreaker for our guests. Something that tells us a little bit about you and gives us a chance to talk about ourselves, which is one of our favorite topics. And today, we like to do music related things. So, tell us if you can remember what's the first either record or LP that you owned, vinyl LP.
Neal Hutchens
You know, I think in 7LP it was probably going to be a cassette. And gosh, that's a good one. I listen to a lot of eclectic things. So, actually, I think there's a pretty good chance in the top three. It was probably something from Simon and Garfunkel. I mean, I liked a lot of rock and other different kinds of things from... I have pretty eclectic music taste, but I bet it was that. I've always enjoyed Simon and Garfunkel for some reason. Even when I was little kid and I would hear them.
Eric Kelderman
And you're a little younger than me. So for you, that would have been like music from maybe at least a decade or more before you were really into the music listening.
Neal Hutchens
Yeah, I think it was, so, I would have been in high school in the 80s. And my daughter is now in the 80s phase. And so I think for me, when I was listening to it, I associated that with the 60s. And so I thought it was kind of cool to listen to something from that. You know, now when my daughter refers to the 80s, she'll ask me to tell her about the 1900s. Yeah, that's the 1900s and the olden days. She'll ask me some time.
Eric Kelderman
And then you can relate to her about your method for building your log cabin and how you plowed the fields with your horse, team of horses. Yeah. Scott, what was your first album or record?
Scott D. Schneider
I had to, I was thinking about this as Neil was talking, I think the answer is LL Cool J's My Radio.
Eric Kelderman
Wow, that is very hip, man. That's amazing.
Scott D. Schneider
Yeah. Well, it's kind of funny. One of my best friends growing up was also a DJ. And the reason I had that as an album, was that so he could scratch on it.
Eric Kelderman
Oh my gosh.
Scott D. Schneider
Otherwise, I was a cassette guy. Yeah. So that's the answer. There may have been an earlier one that I had purchased, but I'm too embarrassed to say, maybe it was a Styx album. But I want to chalk that one up to my mom. But I'm pretty sure my first album was LL Cool J's My Radio. What was yours?
Eric Kelderman
Honestly, I'm trying to remember. You know, I'm a little, like I said, I'm a little older than, I think, than both of you. So I was back in the Columbia record club days, right? So I have, probably 150 vinyl albums down in my basement yet, and I have a record player. I don't use it very much anymore, but I'm trying to recall what one of the first albums would have been, and embarrassingly, even worse than Styx, Scott, probably in my first order, I probably got a Barry Manilow album, to be honest. I'm kind of a romantic and hard, I'll admit it. But you notice on my back wall here, if you can see on my back wall, I have, there's a Meat Loaf's Bad Outta Hell cover hanging up on the wall. And then over here, you can't see it, but I have the Styx Pieces of Eight album cover framed.
Scott D. Schneider
I could be delusional, but I was in Vegas, you know, we had to do all these little talks every now and then. And I'm pretty sure Barry Manilow is still alive, which shocked me, and has a show and a residency in Vegas. Cool.
Eric Kelderman
Well, let's jump into it. So, Neil, you have a really unique perspective as someone with a legal education who is also a researcher and a faculty member outside of a law school. How did you get into this role? Have you ever thought about doing higher ed law? Tell us about your job.
Neal Hutchens
I think, for me, in some ways, it's ironic even the kind of program that I'm in because I really fell into it by accident. I think, I'm originally from Alabama, I think a lot of people in my family literally were preachers and teachers. I actually started out as a ninth grade teacher, decided to go to law school and thought that I would not go to law school to be a practitioner, but to go back into teaching. I had, when I was doing my student teaching, there was a principal or assistant principal who had a law degree and he was the only one who never seemed so worried about being sued. Everyone else always was worried about being sued and he seemed very, very calm about things. So even when I went to law school, I thought it would be K-12 education, which I still have interest in. But, unlike a lot of my peers, they're really looking for bar classes and practitioner experiences. I was essentially looking for anything that had education in it. And I signed up for a higher ed law class. And within a session or two, I was like, this is so fun. You have these institutions that are cutting edge, but they're kind of medieval. You've got these faculty members running around and they're causing all kinds of problems and just a fascinating place to think about interesting issues. And then, then I would go back and forth. Did I want to go into practice? I did okay on what I call the grade lottery in law school. I co-booked the civil procedure course, and I still don't know if I know anything about civil procedure, just kind of like puzzles to me. It was like doing a Wordle before Wordle existed. But I did do an internship in law school with the General Counsel's Office for the US Department of Education, which was a fabulous experience. Even when I was in graduate school, I did, I was a fellow for the Senate, for the help committee. And so, I would kind of go back and forth, but at end of the day, I think I'm a scholar of higher education, who, I use law, also use history and other lenses to really think about a lot of these issues. And I have friends and colleagues and people like Scott and others who are these tremendous attorneys and advocates. And I'm not sure, there's overlap, but I fundamentally think that what I do is kind of different. It really is just using that law that intersects so many parts of higher ed to think about and understand higher education. And I also hang out with a lot of historians. That was my undergraduate degree. John Thielen, who was at the University of Kentucky's close friend and mentor. And so if you hang around someone that smart just by osmosis, you'll, you'll have an interest. So it's part of the framing and the way that I think about it, but it really is different in a way. And I admire the practitioners and the attorneys, but I know that I don't do what they do. And I'm not sure how I would do trying my hand at that as the kid who in civil procedure.
Eric Kelderman
Well, talking with Scott on a frequent basis as I do, can tell you that your job sounds a lot less aggravating than his.
Scott D. Schneider
No comment. It's, I don't know if “aggravating" is the right word, but there are days that are exceptionally challenging. So this is one, but I think, it's so funny, I think Neil just, in my mind, just nailed it. I mean, what, I don't think I had, when I got out of law school, I had no idea this was, is actually a thing. And the issues you're blessed to deal with on a daily basis are just, you know, they're just remarkably interesting, occasionally very challenging. Yeah, but never a dull moment.
Eric Kelderman
Yeah, so we'd like to talk with you about sort of how the relationship, since you've got sort of a long lens view of this, we'd like to talk to you about how the relationship between the government and higher ed has shifted over the past 20 years or so. You brought this up in our conversations before we were setting this up. And as Scott has sort of written out for us so eloquently here at many flagship universities, the medical center has become the gravitational core of the institution, not just financially, but in terms of defining the university's identity and its priorities. How has this shifted governance, compliance expectations, the relationship between the university and the medical enterprise? Which is the earth and which is the moon in these orbits, in California?
Neal Hutchens
Yeah, and to start I'll actually go to another great historian of higher education, Roger Geiger. And Geiger talks about, writes about, one of the reasons we look at the history of higher education is because some things kind of stay the same, which is often the trope in higher ed, nothing ever changes. But then because things actually do change. And so, if we think about early in the history of law institutions, kind of the medical school or those professional schools were kept at arm's length. I think something that is, it's happened over a couple of decades, but maybe people are really starting to realize it is a play on words, John Thiel and I are working on an essay on this.
Eric Kelderman
Yeah, yeah, of course.
Neal Hutchens
Clark Kerr, a great leader and his scholar of higher ed, he termed the, yeah, termed the multiversity. John and I were playing around with, there's at least an offshoot of a new institutional type, we call it the metaversity. And so, there's a little bit of hometown nostalgia here, but I'll talk about an institution, University of Alabama at Birmingham, not the flagship UAT, Alabama Tuscaloosa. It didn't even exist as a separate institution until 1969. Okay, but then here's a little bit of nostalgia. We're talking about nostalgia. Do you remember the old show? I used to get to, we had like one channel, we'd have cable. So we'd get Gunsmoke reruns. Do you remember Doc on Gunsmoke? In 1971, Doc had to have heart surgery. And so he had it in Alabama. And there were stories about why would one of the actors in one of the top rated shows go to Alabama to have heart surgery at UAB. And they had recruited someone named Kirkland from the Mayo Clinic. And so this institution that was started in 1969 and would build up predominantly on the medical research side. And this is why I think it's kind of interesting, where I'm from, but it also stands out that it's a good institution, but it's not an elite like Hopkins or Stanford. So we can talk about the future of federal funding, but by, say, fiscal year 2023-2024, it would be in the top 15 or so, closer to the top 10 of all public universities in terms of NIH funding. And so, I think part of it is, institutions have grown and look for revenue sources and funding. A couple of things is that you're asking about governance, but just in terms of budgets and operations. So a couple of things. So if you look at certainly an institution like UAB, which really grew up on the medical side. I think through the years it's maybe morphed to add other kinds of in-person housing, residence halls and other things. But I think other institutions, even long-standing ones, have morphed that way. And so for instance, if you look at a lot of budgets of say state flagships now, it's going to be maybe 60, 70% of their budget may be tied to the academic medical side. Like if you look at Ohio State, if you look at Michigan, my own institution, University of Kentucky, which has experienced a lot of growth in the last 10 to 15 years. The budget has more than doubled and most of that has been on the healthcare side. And another component that has happened is, we probably still think in terms of like a university hospital, but really what's happening with a lot of places is they've really expanded into, we use the term, academic medical centers, AMCs, but their health systems. So, for instance, I'll go back to what I talk about, UAB in Birmingham. It's not just the largest employer in Birmingham, it's the largest employer in the state. And so, if you look at, in the last couple of years, we've had a lot of rural, semi-rural hospitals that have faced closures. You've seen a lot of universities and their affiliated health systems, they're not just operating in university hospitals. They're operating true health care systems. They may be one of the dominant health care providers in the state, one of the dominant employers. And so, what then happens when something that probably used to be held more at the periphery of the institution, so, let's say for instance, just in terms of governance and faculty, these are really large operations. So you now may have the majority of your faculty maybe on the health care side and affiliated things. So not just medicine, but health professions. You'll see units that maybe now all of a sudden want to be associated with the health side. So, you may have a term like social work or something like that that may want to lean into that health care provision. You also see it in that I think you still certainly have attorneys who make their way and become university presidents. I'm thinking of Jonathan Alder at American University. But now you see institutions, they'll lean into that healthcare side for their provost and presidents, maybe in a way that they used to not as much. And so, at the same time, we've seen this rapid rise on this medical side. Well, think about arts and sciences. If we think about a school or a college of arts and sciences, science or liberal arts, that was kind of considered the core often at institutions and in some places still is, they actually haven't been flush with cash. And so, as you've seen this growth and this emphasis on jobs, you know, job preparedness and bringing in external dollars like through NSF, NIH, I think that probably has really tilted the institution in important ways to where that something that might have used to be kind of on the periphery of the institution is now in the core in terms of who the faculty that you really may have voting where leadership is focused on.
I also think there's a political dimension to this and this is, I don't have data on this, but I'm just kind of speculating. Let's imagine if you're in a purple or a red state and, you know, higher ed, it's had its bumps over say the last decade-plus, in terms of kind of this place, there's a lot of contentiousness. Let's say you're in a politically conservative state and you're a leader and you're a board, and you're looking for consensus. Leaning into that healthcare mission, who's going to come out and say no I'm in favor of cancer? From a leadership perspective, I think, there's a natural affinity to where you can lean into say our mission and lean into that healthcare mission side. But I think we're still kind of reckoning with what it means. I think especially with not just operating a university hospital, but these true systems that become this huge part of the budget. I don't know if we've kind of caught up with our reckoning, what it means exactly in terms of the focus for boards and even state legislatures.
Scott D. Schneider
I saw, and I sent it to Eric, the interim president at Columbia, I think it was this morning, issued a statement about kind of the ongoing interactions with the federal government and a really big part of her statement was around the importance of research funding for the scientific mission of the institution. I'm kind of curious, and I've seen this in practice, but I want to riff off of what you were just talking about, because I think you're really on to something. The disconnect between whether it's the medical or science part of a university community and maybe the humanities part, which that first part is just laser focused on bringing in grant funding, continuing their scientific research and anything that calls that into jeopardy, including the administration we have now, which doesn't, I'm trying to parse my words here, but isn't keen on protests and doesn't looks at that as disorder and also, anti-Semitism, this pressure to basically, from that side of the house, to say, can we cut this stuff out? Because it's jeopardizing our funding and even to the extent, you could see some red lines that the president, the interim president was trying to draw today, even if it goes against the the kind of core principles that have shaped higher ed for a long time, including creating space for robust opportunities for protests and conversations about complicated topics. Is this how it's playing itself in real time now?
Neal Hutchens
I think those are exactly the kinds of issues we're going to have to see how they really do play out. You know, one of the things that makes me think though, for decades, there's always or often has been a tension between more the professional schools and say the humanities on a campus. So, whether it might be a business school or it might be law schools, even, for instance, viewed themselves sometimes as not in the core. But I do think that in some ways we're ratcheting up beyond to where… Because again the scale is just so massive. I mean, one of the things if you think about it is, you know, one of the things I've joked, on some of these campuses, when your medical side catches a cold, then you have other parts of campus that may get pneumonia. Because, if you think about humanities programs or other things, again, when you've got 60 and 70% and larger of your budget tied up into these things. And now, I want to be clear, for the hospital operations, they're not necessarily tied to university. They'll set up a different governing structure, and Scott, you may have even dealt with that for institutions. But there is an entanglement there and a mentality. I think Scott, what you're saying is, what is the institution? And, you know, Kerr, this idea of the multiversity, you used to read that, you know, with Kerr and others like, you know, well, how do you find a university? Well, it's got like a shared heating and cooling system or, you know, I mean, it's always been nebulous to define. But we've got this one component that at least in a lot of institutions is becoming really dominant and some of the concerns that come into play are different than what we might have in other units.
So we've talked about the research funding, but if you're at one of these kinds of institutions right now, you're a leader at one of these institutions, in a way that the rest of the campus is not, if you're truly operating a healthcare system, you're really looking at what's gonna happen with Medicaid. So for instance, we think back 15, 20, 30 years ago, if there was a big change to Medicaid, a university might have noticed, you might have had scholars and others that would be concerned about it. But now these kind of new institutional type, this metaversity, the profit margins, I understand them, they're still pretty close. And if you're in a state, like the state that I'm in, Kentucky, which is one of the highest per capita in terms of its residents receiving support from Medicaid, a big change in that program that has huge ripple effects for this operation that you're building. And so, you're so reliant on this system of not just the research funding, but to keep these other somewhat somehow affiliated enterprises going.
I didn't answer your question. See, that was me being a lawyer, Eric. He asked a question, I didn't really answer it. I just said, well, it depends, maybe. But I think it's a little one.
Eric Kelderman
Alright. Here's what I wonder about, which is given the threats to research funding from reductions in F&A money, facilities and administrative money, and the ideological restrictions that are coming from NIH, NSF now, are institutions considering different corporate structures that would protect the research money by somehow sort of legally separating the medical entity from the other side of te house? Has anybody talked about that even?
Neal Hutchens
Well, and Scott may have more insight on this than I do, but I think structurally already, and this goes back to I think even earlier iterations where institutions, if their university hospital had financial difficulty, it would create problems for the rest of the institutions, they often will have a separate kind of board that covers a lot of the hospital side. And then the academic side will be under a different structure. So, I think, probably in a legal structural sense, that's been part of what we've had. But with that said, it's truly these academic medical systems, academic health systems have grown up. I don't know if we've entered the phase of a stress test of what we're having now. And so, I think to your question about how is it going to play out for what it means for kind of that, the health side, either the academic side or the patient service side and the rest of the institution, I think, depending on what happens with Medicaid, and what happens with the future of some of the funding, that's going to be a real stress test to this new model. In terms of, you know, institutions have also, they've invested a lot of funds to attract it in terms of building research buildings. They'll lean into the state government to say, if we build this, the NIH dollars will come, and so that's been something that you've seen at a lot of institutions. This promise of give us funds for capital investments and we will bring in these research dollars.
So, I think, the structures there are somewhat in place, but then, I think, the reality of what does this really mean for the institution in kind of the direction of the board. Again, going back to some of the conversations that John Thiel and I have had. I think that as we've been in this era where there's been a lot of federal support in various ways for higher education, whether that's research funding, whether that's for the student aid program, I don't really know if institutions really had too much planning for, like, what happens if this goes away? I mean, I think there was just kind of been an assumption that this is the state of affairs that we will follow. And so I suspect, that you have a lot of institutions that they've really kind of built their institutional mission, or not built it, they've certainly swayed the mission to embrace this. I'm just not sure that there's much of a plan B and that may be some of what's happening now. I think a lot of institutions are just kind of holding their breath and hoping that maybe we could get more of a bipartisan consensus that dismantling the research enterprise or really hobbling what we do in terms of student funding may not be the best for all states, red and blue.
Scott D. Schneider
Yeah, I think the fine point I would put on that is, and I remember the university climate after the financial crisis, I guess that was a decade ago. And there were,at that point, a lot of austerity measures and cutbacks and, you know, look, there were layoffs on a lot of campuses because of that. I think this one is unique in the sense that there are real conditions on being in the good graces of the government that a lot of constituencies on campus are probably, understandably, alarmed about. It's navigating not just, well, in the short term navigating kind of the loss of funds, but really to what we were saying when you were talking about at the beginning, like what is this? What are we? What are the red lines we're unwilling to cross, even if it jeopardizes substantial funding sources? And again, I thought that there was a four minute speech, if you haven't seen it, or tweet, that went out from the interim president at Columbia. I thought she did about as masterful of a job as anybody I've heard, and sort of laying out the twin obligations around compliance, the importance of funding for the institution's mission. And what are those red lines? And I think if I recall, it's around who governs the university and who is going to teach. There's also some allusion to intellectual diversity, which is kind of been, and maybe rightfully so, something I've seen a lot of folks in this administration really chastising institutions for, there aren't any conservative voices on a lot of these campuses. So, the way I think this moment is different than other periods where you thought, hey, the government's going to be tightening its belt is, here the belt tightening seems to be around either accepting or not accepting conditions that fly in the face of what, I think, some people have traditionally thought of as core principles of higher education.
Neal Hutchens
No, I think that's a really important point. And I think along two dimensions, one's a federal and one is a state. So along the federal level, while we certainly have seen the federal government at moments, and this might be in civil rights enforcement or other moments, has been very active in what is happening in higher education. Unprecedented gets used a lot, which is good because I really sometimes have trouble with that word. I want to say “unprecedenteted.” I think you're absolutely right, Scott, that we're on the verge of an unprecedented movement by the federal government to really engage in the internal running of institutions in ways that it has never, never done before outside of, you know, again, George Washington and others wanted some kind of federal system to higher education to train leaders. And we didn't get that. We got the service academies. You have some tribal colleges. But higher education and education fell to the states. In some ways, you could argue it from, I think, very, and I'll use conservative value point, that this is a pretty big intrusion into state and private institutions. What I would also say, we've talked a lot about the feds, but I think in higher education at the state level, what we're seeing in some states, and I would include Texas, Florida, Utah, other states, but certainly either bills that have passed or proposals, in a way there had been, I think for decades, even though there's certainly been various levels of state involvement, but that we're going to buffer higher education and allow boards and other mechanisms to have a lot of say in how they're governed. For shorthand, and I don't use this pejoratively to my elementary and secondary peers, but I call it the “K-12-ification” of higher education. In a way that state governments have been willing to intercede on what curriculum and how K-12 schools run, there's also control at the district level. I think that we're also bordering on unprecedented in terms of state governments that are really wanting to take a hand more similar to what I would say we see in the elementary and secondary education levels in terms of controlling institutions. And so, I think that's another component of what does it mean to be, for instance, a public university and who should have control, who should be the voices and how almost democratic or Jacksonian should that be.
Long time ago, my dissertation on a couple of states, a handful of states, they have constitutional provisions, Michigan, California, Minnesota, they actually have some constitutional protections for their governing boards of the institutions. And one of the reasons they did this in places like Michigan, they had this end fighting that ultimately people viewed it wasn't so great for the institutions and allowing them to flourish, but that's not the case in most states. I think, it's really kind of been out of habit, thinking that it was a good policy that we shouldn't get too involved in the daily affairs or the running of institutions with notable exceptions. But I think that's really on the table in a number of states, about how heavy a hand the state government should have, at least in relation to the public institutions.
Scott D. Schneider
By the way, I mean as somebody who litigates in this space and has sort of seen this in real time, you you see that lack of deference to institutional decision-making play itself out in the court system for, you know, 30, 40 years, to the point now where it's almost like if you represent a university in some jurisdictions, the presumptions are, you must have done something wrong. I mean, we've gone from an academic deference model, or an institutional deference model, that you could walk into a court and say, hey, we're special, leave us alone, academic freedom, first amendment, blah blah blah blah blah, to, okay, you're a participant in the culture war and you must have done something inappropriate. So we see that playing itself out.
Can I pivot a little bit? I'm kind of interested in your thoughts on this and I found I sound a bit hypocritical. So I think NACUA is coming up with the annual conference in about two weeks. I'm gonna try to go. I'm planning a trip to Japan. So I'm trying to keep my travel to the minimum. But, in the 20 years or so that I've done this, I've seen the number of lawyers attending that conference balloon. You mentioned there was a trend, and I think I still see it playing itself out at places like the University of Texas, for instance, where the president, or at least the interim president, was the general counsel. We see it in the Title IX world, where this just explosion of attorneys and compliance personnel and all that sort of stuff. I mean, have we gone too far? Are attorneys playing an outsized role in the college and university space?
Neal Hutchens
So, some of that I'm going to answer like as a social scientist. And so what I'm going to say is, I think, for instance, in the case of general councils, I suspect on a lot of campuses, your top legal advisor, which notice they're often not just general counsel, they're often a vice president. They're often now part of the president's cabinet leadership cabinet. We have research on presidents, provosts, professors. We just now, I think, in a lot of ways, getting a handle on, and Scott, what you're saying is, I don't know if we have a lot, a deep understanding of the role that these individuals are playing in a holistic research way. I noticed, for instance, you're talking about NACUA, they sponsor the Journal of College and University Law. One of their forthcoming articles, Blake Billings, it's on the role of general counsels. I know that Nate Hutcherson, who has finished his PhD at Boston University, has just done a dissertation on this topic. I think this is something we really need to get a handle on. And I know you're thinking even more deeply through the organization, but one is, this role, this leadership role of how legal works and interfaces with all these other teams. One of my friends and collaborators is a Chief Student Affairs Officer and talks often about this relationship that you have with legal between HR and other units. I'll talk about this a little bit as a faculty member. Kind of a researcher perspective, I notice it with interest, but the number of people and the compliance and the enforcement and the trainings and everything that we go through, it's pretty much become ubiquitous. I mean, it's just everywhere you turn. And one of the things that happens, and I'll chuckle, like if I'm on a panel that's about free speech and students, and we'll have like from organizations or attorneys, people will say, well, know, if you have a problem, and Scott, I would think is when you're working with clients, like you'd rather hear about an issue before they've done the wrong thing. And so, there's recommendations like call, call, your attorneys, and I'll chuckle about that. Someone who's been a department chair and been a faculty member. I don't really, I mean, I may have a personal relationship, but professionally, I don't just get to call up these offices. Like I have to exist in this hyper more and more legalistic landscape, but I don't necessarily have the resources. And so, somebody who's, you know, been a professor of English literature, or historian, or other places that were in these spaces, I do think it's becoming a lot more challenging. And so, I think about it almost sometimes when I do trainings or work with different groups. I think with the law, we still have a little bit of paralysis. You will be in a meeting and seems like this could raise a legal issue. So everybody kind of throws their hands up and steps away like you're dealing with a radioactive isotope. But if you're in a meeting and someone says, this has budget implications, we don't necessarily do that. So Scott, to the heart of your question, what I worry about is, and I don't necessarily think this is the attorney's fault. I think they often maybe have a good sense of that counselor role in giving legal advice. But people doing that dance to understand like we need the legal advice, but we don't need it to let it shut out our expertise, our educational expertise and coming into those spaces. And I don't know if, I think that's still a work in progress at a lot of institutions where, you know, say if you've got a FERPA issue or other kind of issue. I often say that oftentimes the legal standards they set the floor, but that doesn't necessarily mean they set the ceiling for our decision making. And Laura Rosting, who's a disability law expert in the higher education space, she often has a framework that she talks about when she speaks, you know, that you've got to have this notion of what do you have to do, what can you do, what should you do. And again, I don't know if that's, I don't think that's necessarily fault of attorneys on campus. I've met a lot of really great competent, talented attorneys, but those of us interacting, I think sometimes maybe we go like, just tell us what to do. But I think it's a problem figuring out how we navigate those spaces where that expertise doesn't get crowded out. And I think it gets harder and harder. The late Michael Alevis, he talked about, years ago, the legalization of higher education, which now makes it sounds like marijuana, that we're decided to legalize higher ed. He talked about this a couple of decades ago, and I don't think that that's easier. I think it's gotten harder. I think that's a big question moving forward for higher ed. How do we hold our core values in a heavily regulated environment? And also one in a compliance sense, it's ambiguous now, at least under the current administration.
Scott D. Schneider
Yeah, I posted something on LinkedIn about this, which is, and I don't have brilliant thoughts, but it's the special nature of lawyering in a higher education setting. And for all the reasons you discuss, I mean, and look, you're blessed with, I think still, one of the great leaders in this space, Bill Thro. I get to work with folks like Lee Tyner and Paul Ward at SMU, who, I mean, these are lawyers who get it. There are just a lot of folks entering this space that, it takes a while. My example was, I worked at Tulane, was in house there. And for the first six months to a year, I was like, what in the heck is going on? This is bizarre. I used to work with companies. There's a structure to it. And, you know, some people would say after a year, I'd go, it all started to make sense. And they're like, you have Stockholm syndrome, or you've been institutionalized. But no, I mean, there's a unique responsibility and way to lawyer in that setting that I have a hard time putting in words, but I do think it requires a lot of experience and sort of an understanding of the unique role colleges and universities play, both in community and in the national spaces as well.
Neal Hutchens
It's interesting, you mentioned two general councils I'm familiar with, Bill Thro and Lee Tyner, and that just comes out with them. They have an appreciation for the institution as an institution. Bill, for instance, in his individual capacity, he's always clear that he's not speaking for the institution, but he publishes, he likes to think about these issues. Lee Tyner is the same way. So they're very good advocates. They're very good practitioners. But I think what you're saying there is really, really important. When higher education, even when it works well, it's very messy. It is a glorious chaos, and that's when things are going well. And if you take too much of that chaos away, you may get a lot of people who are very compliant. They'll just kind of go the way that you want them to. But at the heart of it, how much does it take away that you're hurting that innovation. That, you know, when colleges and universities work, they often don't work well on things. But when it goes right, it can be really life changing for individuals. Michael Crow at Arizona State, a couple weeks ago, he was talking about all the things like the iPhone and all this technology. Those come through partnerships industry has had with institutions. And so, I've been in higher ed a long time, so I'm not too starry-eyed, so I see a lot of the problems, but you also don't want to lose out that there's a lot of really cool things that happen in colleges and universities that they're probably not necessarily going to happen in other spaces.
Eric Kelderman
Neil, Scott was asking you earlier about if colleges are sort of “over lawyering,” in a sense, I think is a way to put that. At the moment, you know, we have an administration that is, I guess, seeking to impose legal and regulatory compliance in ways that might be contrary to long standing interpretations of the law or expansive in ways that we're not used to. So what does compliance look like when you have pronouncements from the government that in many ways may be questionable legally? What does that mean for the hot topics today are, of course, diversity, equity, inclusion, academic freedom? What does a federal compliance posture look like now?
Neal Hutchens
I'm sorry, I'm chuckling, because I mean how do you comply with something when you don't really understand it? I mean this is where I will go in a little bit my lawyer mode and I've looked at some of these letters. They're vague, they're ambiguous. I mean maybe that's somewhat the point is that you want people to give in. I think it's an incredibly, and I could be hard on university leaders and presidents, but I think this is a very hard place to be in. Because you want to hold to the mission of the institution, you want to hold to the values that make it a special place. But the reality is, we know that the reliance on federal funds, either through student aid programs, through research, if those taps really do get turned off for an extended period of time, your institution may not be able to exist, or certainly not exist in its current form. So these are not kind of low stakes, simple questions. So in some ways, and maybe I'm overplaying it, but in a way I don't think I am, it is somewhat of an existential moment. Like what do we stand for? I think we've used the term, like, we're the lines that if we cross it, we're no longer actually functioning in the way that we're true to an institution, true to our duties. Wwe think in legal terms of fiduciary duty, but I'm using it even more broadly, in terms of we think about. A lot of colleges and universities have lasted a lot longer than a lot of businesses do. And so if you're leading an institution, you're really, you're safeguarding something that's not just for the now, but you're really hoping and thinking long-term into the future. So I think there's a choice. I mean, I think, Harvard has chosen that it's gonna fight it out. I think that other institutions may try to comply. Harvard's a private. It's got a lot of powerful and wealthy backers, and it thinks it may be able to weather the storm. I suspect that some of that's also in the state that you're in. If you're, University of Virginia, for instance, has gotten demand letters to show proof that it actually dismantled its DEI programs. Well, you're in a state, a really interesting state context because you have a governor with an agenda, then you have a state legislature that just blocked appointments to governing boards. And so you've got this federal issue that's overlaid with the state kind of dynamics that you have into play. And Scott, would, I guess I've thought about this, don't know you have, it's kind of like what we've seen with the law firms and some of the demands that the Trump administration is. But some law firms have said we're gonna challenge this. Others kind of comply pretty quickly. And historically, higher ed's not always been, it's been a risk averse institution. So let's think about Ellen Schrecker and talking about the Red Scare during the 1950s. And I've heard professors talk about what happened during that period. Like that was a time, like, right, we had overreach, governmental overreach. People's jobs are being threatened. You also had the lavender scare. People were being dismissed because of their sexual orientation. Time to show courage, right? Well, a lot of institutions were like, no. They acquiesced. I mean, I think, institutions, we have this idea we want them to lead, but often they're pulled along by different forces that sometimes make them do the right thing. So I don't have a simple one there. It's a hard choice. You have to figure out how much can we give away before we're just really not being true, but recognizing that the stakes are really, really high. Because there's not a lot of institutions that, if an administration is really successful in setting the stage despite the Administrative Procedure Act and just notions of fair play and due process, that can actually not allow your students to participate in student aid programs. It's gonna be really hard to operate as an institution. That's where I do, at some point, hope that we get more of a bipartisan consensus to come forward. And I really do mean that. I really do mean, a bipartisan group to recognize that the higher education system that the US built in the 20th century and the decades after World War II, it's really special. And we may find it's a lot easier to tear down than it is to build back up. And so, you know, we see a lot about institutions banding together. I do think that it's just going to have to be a group of leaders at the state and federal level really pushing back and saying, is this really, really what we want to do? Do we really want to hobble a lot of our institutions?
Scott D. Schneider
Yeah, and I want to say something to you. I have, maybe it's a, I don't know if it's a unique perspective. One of the things I thought that was interesting about the Columbia piece, and one of the things that's made me a little uneasy, even about sort of the, just the opposition to what, the kind of full-scale opposition to what's being done at the administration level. One of the things I thought was interesting about the Columbia piece that came out today, was this acknowledgement and pretty robust terms about, yeah, you know, there are anti-Semitism problems on our campus. Sort of the approach I've always had, I do a lot of, I've done a lot of Title IX work, I've done a lot of Title VI work, all that sort of stuff, and, you know, one of the things that's ubiquitous about that work is, there's always going to be someone who's critical of what you've done. And you can develop two approaches to that. One of which is, I'm not listening to it. Well, there's three. One is, my God, we've done something wrong, we need to course correct. And the one that I've always thought is correct here is, process what's reasonable, what's unreasonable, if we've made a mistake on that. And so, I don't want that to get lost. It seems to me one of the interesting things, and you alluded to this, is schools have civil rights obligations. I think there are some really unique and fascinating legal issues about how those extend into criticisms of Israel, Zionism, all of that sort of stuff. The tension between those issues and free speech issues. I think all of that is really interesting and worthy of a conversation. But if, on campus, just because you disagree with the messenger, if we've come to the conclusion, yeah, that's right. I thought it was interesting to hear Columbia acknowledge that and say, on these issues at some level, we're going to work with the administration and stop framing this in terms of capitulation.
The other big picture thing I keep coming back to, and you sort of alluded to this earlier, is, from a politics standpoint, there used to be a party that was very hands-off when it came to civil rights compliance and higher education institutions. I mean, there was a big, and I think, maybe appropriately, reaction to and concerns about what the Obama administration did during the Title IX space. And at some level, Trump maybe was the Trump one was a course correction. Trump two is a heck of a lot more like Obama was in terms of his interactions with higher education in the role of civil rights compliance arms within the government. And then I go, I presume Trump won't be president forever and you get another president, maybe with a different set of priorities, president AOC or Cory Booker, whoever, Gavin Newsom, I don't know who it is. Is there ever a moment where we say we need to hit reset here? Because we don't want to go from 180 degrees doing compliance one way to a whole different set of
priorities and the tools that you're willing to employ to enforce compliance, pulling funding without adequate due process, all of that sort of it. Is there ever going to be a moment where we go, hey, can we hit pause and maybe reset to some norms that have worked in this country for a long time?
Neal Hutchens
I think, and that's where I've repeatedly used the term this bipartisan view. And so, for instance, it's a little different than the Title IX space, but for how we've seen it, some institutions, they're really trying to dialogue and engagement for different groups to talk across differences. And where, for instance, that we, I think we do need to try to figure out, is there a way forward that we can agree to at a national level? I think this is also playing out in some states. We've seen the continuing ratcheting up. I know, for instance, early in my career, if I were on a plane ride and someone would be like, oh, what do you do? I'm like, I'm a professor, education. Then they would, that would be like, oh, that does really sound boring. Now, if someone asks me what I do and they probe a little bit, they will one way or the other tell me everything I need to know about higher education and faculty members. Like, I've had people tell me like, we've got to get rid of tenure. It's just terrible. And so, somehow, we've got to figure out if there's a way. I think some of it's understanding. I do think now there are a lot of different kinds of institutional types. I feel like even today we've probably were focused on kind of the research or the large public flagships. I mean, there's like four thousand institutions. So you're doing community colleges, you've got your small privates, your small liberal arts. It's a really rich tapestry of institutional types. But I do think that probably institutions have been arrogant at times. I think they took for granted that kind of deference that they got and it was just expected from the courts. They maybe expected it from the legislature. I think, for instance, if you're gonna be in a state that has got a wide variety of political views, are you thinking in terms of how you're welcoming all those students?
Those are the kinds of issues that I think that you're probably going to have to end up with a university that you don't love every aspect about it, but that may be part of what makes it truly like a flagship institution. If you look at some of the stories, you would think that all the professors in an institution are just running around with a certain political ideology. They're at the gates. When truly, there is probably more diversity. And like a lot of faculty members, they're just really focused on the work they're doing in their lab or doing other kinds of things. Faculty joke all the time, there's this notion about that, you know, we're just compelling students to do things. I wish that I had the power to compel students to do assignments and other, my powers, that I have over students, I have found through the years, are very minimal. And so, I think, even when I was talking about, Scott, we were talking about, with the general counsel role and some data and some agreement, that's even where we've seen some states that have launched some of the surveys to understand how students feel in the classroom. I actually have a student, he wants to look at those as survey instruments, because we need good data. Bad data is also harmful. But to understand those. I think you are onto something that we're gonna have to reset. It's almost like, maybe I'll say, we just have a timeout? Let's call a timeout and before we tear everything down, let's think about is this really what we want to do? Is this really what we want to do? But I don't know, I guess that's so much easier said than done.
Eric Kelderman
Scott, did we want to tee up a question about sort of academic freedom in this contest?
Scott D. Schneider
Yeah, let's talk about just one more topic. And you know, this has been fantastic. It's got my head swimming, and this is exactly what I was hoping this would be. So, I appreciate you. One of the interesting, so I a couple of projects, I did a lot of projects this semester. But two that I found especially interesting were sort of the same kind of substance was, we rewrote some codes of student conduct from scratch. One thing I thought, well, there were two things I thought that were interesting. I did similar projects probably about 10 years ago. And then, the kind of faculty perspective, and this was primarily around sexual misconduct, was, we, you don't take these things seriously. We need to crack down and we need to expel students. And it was not very due process oriented or, you know, that was sort of the kind of zeitgeist of the faculty at the time. This time it was completely different. It was, everybody should have lawyers for all misconduct. And it was very due process focused. That I thought was an interesting shift. The other thing I found interesting, and this is really what I wanted to get your perspective on, was in crafting that code, or those codes, historically, the faculty would be really, really involved in that process. There would be robust conversation, faculty governance, all these committees that you'd have to go through. And in all these instances, we did that. I'm kind of, but it wasn't as robust as it probably was 15, 20 years ago. And some of the code changes were, hey, this is a very litigious area, lawyers are very involved. What's happening right now to, like, faculty voice, shared governance in this climate? Is that, now, to be able to adapt, is that passe at this point?
Neal Hutchens
You know, I think about the AAUP and their 1915 declaration. They wanted to describe faculty members. They wanted to say that they're like judges. They're appointees. They didn't want to actually use the term employees. They're appointees. I think what we've seen over the last 15 to 20 years, and this is where I think the integration of the scholarly and the law is helpful. I think, increasingly, we're seeing the view of the faculty member as employee and that that is their role. And emphasizing the employee aspects in terms of whether it be shared governance and making sure that voice is advisory, to even what goes on in the classroom. And some of that is also, it's not just that the institutional leaders are getting around and saying that, but there's some real reasons for that. So, for instance, if a faculty member says, I don't want to provide accommodations to a student with a disability, I'm sorry, the courts are not going to let you do that. Like, if you're just like, I don't want to do that. So there's some, and that's something I talk about with my students a lot. There are problems with compliance in the law, but you can look pretty easily at higher education history and see a lot of problems with people being excluded from the institution. But with that said, I think that this has played out with, I mean, if you align it with, basically, tenure now has been in retreat for multiple decades. And I think that shared governance, iIt had been because for one reason so much of what would surround the institution, it's hard to say is that truly an academic policy or not. Like when you're dealing with IT, we're all, I feel like, increasing a lot of institutions anyway, we're kind of at the mercy of whatever professional is in charge of the technology. I don't know how many meetings I've been in, where you'll ask the question, do we have to do it? That was like, well, that's just the way the system works. So that almost defines the policy. But I do think that there is a movement at a lot of institutions to emphasize faculty as employees. And some of that is because it's tough. You've got to move fast. We probably didn't redesign our shared governance models for really a calendar, it's a 12-month calendar. It's not like business stops over the summer months. I'll pick on Texas. Texas is clearly wanting to emphasize that faculty should have a very limited role in the governance bodies for Texas public institutions. And it's just advisory. I think, in the new legislation, there are ways to remove members of faculty senates. And so, we've seen a reorganization of that.
Scott D. Schneider
Hey, Neal, I'm obligated to say as a Texan, don't mess with Texas. Whenever you criticize Texas, it's like literally to get a driver's license. I need to say that. So I just wanted to get that in.
Neal Hutchens
Texas and Florida and some other states, they're kind of in the four. So maybe Texas would look at itself as a leader in this movement to appropriately depower the faculty role. And so in some ways, I think this goes back to, I talked about kind of K-12 approach to higher ed. If you look at elementary and secondary education teachers, there were battles decades ago over kind of their role, but they have a very limited role, often in terms of curricular matters and other things. And I think that's the model that, at least in some states, we're moving toward when it comes to faculty.
Eric Kelderman
I want to ask a quick follow-up. Is there a corollary here, or even causation, between the increase in looking at faculty as employees that goes along with looking at students as customers?
Neal Hutchens
Absolutely. I I think it's, you can use whatever term you want. If we were in the, some academic spaces, neoliberal forces, we can say corporatization. But it is that, maybe the golden rule, who has the gold, makes the rules at higher ed, is that it is very much an economic kind of enterprise. And those forces, I think, increasingly come into play in terms of how we view those relationships. And so, you know, there's this old story about when Eisenhower was president. We were talking about Columbia, it was at Columbia, and it was making an institution, and essentially referring to faculty as employees, and faculty members said, we are the institution. And I do think that's a holdover that some faculty have. But I think that we're clearly moving in the direction of no, you're just one of a group of constituents on this campus. And I think, there's a pretty clear movement at, not all. I mean, that's one of the things. In higher ed, we love to make sweeping generalizations. But I do think that we're seeing that in some states. And that even gets into, when I talked about the tenure. So let's think about institutions have moved to where they don't have to declare financial exigency to dismiss or dismantle programs. They do it, some, as I understand it, for their credit rating purposes. But it also makes it easier to reorganize an institution. Think about what happened at West, I won't pick on Texas for this one, Scott. West Virginia University, Gordon Gee, just a couple of years ago, where there were a lot of programs that were dismantled. That was not through a declaration of financial exigency or anything like that, where you would really kick in kind of a shared governance procedure. It was more, we're doing this kind of like a corporate downsizing. And so, I think that's more a model that we do see in a lot of higher education places. And so again, you may have institutions, and I'll use my own institution, we kind of got a couple of headlines that we probably went to having one of the more powerful faculty senates for a public university to through a reorganization that the board, the state legislature wanted where it's very clear that the faculty role now is advisory. And so, I think I've kind of lived that at my own institution, but I don't think that we're necessarily, we may be more extreme than some places and how it was so downplayed. But I think that's a process that's playing out at a lot of institutions.
Trusted Voices ad read
Scott D. Schneider
Can I close with the most important question? Alabama, are they going to make the college football playoff this year?
Neal Hutchens
Under the new model, I don't know, they're a small state. That's where we talk about corporatization in business. I'm just not sure how that's going to work. But I'll say yes.
Scott D. Schneider
It's one of my favorite, like the athletic stuff. I've gravitated to it because I think it's just fascinating and interesting. But yeah, it's, different schools have different incentives about what the operating rules are. And some schools are going to do really good in the climate that there are no rules whatsoever, including two in my state right now.
Neal Hutchens
You know, on the faculty side, though, I think maybe some days I think we should just lean into that and kind of like a NASCAR race team. I should just get up in front of the classroom, like all these patches for my sponsorships and that's the…
Scott D. Schneider
If you do that, please let me know. I would love to see it. That would be awesome.
Neal Hutchens
Well, we got to figure out if we don't get the federal research funding or other things, we're going to have to keep leaning into that corporate model. So we'll just have all our sponsors. We'll just look like a car driver.
Scott D. Schneider
Diet Coke. I'm open to taking on a sponsorship.
Neal Hutchens
So I only pretty much teach online, so I can just do product placements too.
Scott D. Schneider
I got to teach at UT's law school this semester. It was genuinely delightful. Like literally one of the best group, probably the best group of students I've ever taught. But yeah, that's a great idea on a go-forward basis. The Diet Coke sponsored, adjunct professor of higher education law. Cool.
Neal Hutchens
We may have to get more entrepreneurial depending on how it's handled.
Scott D. Schneider
You wanna follow me on TikTok and Instagram?
Eric Kelderman
Well, let's wrap it up here, and we'd like to close out with something we're looking forward to this week, so something positive. Neil, what's coming up that you're looking forward to in the not-too-distant future?
Neal Hutchens
I think that we are going to take at least one of the kids next week to Kings Island in Cincinnati and so ride some roller coasters. So, blue ice cream at Kings Island and some coasters.
Eric Kelderman
Excellent. Yeah, good. Good plan. Get some graders, right? Graders in Cincinnati?
Neal Hutchens
That's right.
Eric Kelderman
Yeah, OK. Scott?
Scott D. Schneider
This is gonna, so tonight we're going to see another one of my favorite local bands, which is the Texas String Assembly at a hunky-tonk, pretty close to my house called Sam's Towns Point, which if you come to Austin, it's one of the places I will happily take you and, I hope the kids aren't listening, but I will probably drink a couple of beers and there may be, I might smoke a couple of cigarettes too. That's kind of weak.
Eric Kelderman
My question is, are there local bands that are not your favorites, Scott?
Scott D. Schneider
Yes, I could give you a handful of those too, but I tend to see the ones I really like.
Eric Kelderman
Excellent, very good. Well, I haven't got anything big on my schedule. Sunday's Father's Day and you know, have some kids over for breakfast and then I play baseball in the afternoon. That's the perfect Father's Day for me. So, looking forward to that.
Scott D. Schneider
Very cool.
Eric Kelderman
Neil, we really appreciate having you on and thanks for your time, man, and all your insights.
Neal Hutchens
Thanks so much. It was great.
Scott D. Schneider
There you go. Well, look, thanks for tuning into Campus Docket. You’ll find links to everything we discussed today, including related cases, articles, and a full transcript, and the show notes, and on voltedu.com. Be sure to follow Campus Docket wherever you get your podcast. And while you’re there, check out Trusted Voices and Higher Voltage, two more podcasts in the Volt lineup that look at higher ed through different lenses. On behalf of the Volt team and my friend, Eric Kelderman, thanks again for listening. We’ll see you next time.
