In my seven years as a university lawyer, I have found that one of the most intriguing roles on campus is that of the department chair. Common to virtually all universities, the department chair is often the first layer of senior administration encountered by faculty, staff and students. In addition to maintaining teaching and research duties, chairs are heavily involved in departmental and faculty governance, curriculum development, faculty and student academic and research affairs, collaborations with external third parties, the budgeting process and all the legal issues which may arise through these activities.
Poor souls – if a legal issue arises on campus, chances are it will find its way to a chair’s desk. For this reason, chairs and university lawyers share a special kinship. Over time, we both see the whole spectrum of legal issues the university faces. Because of this, how the university’s department chairs and legal counsel work together can have a critical impact on the successful management and mitigation of legal risk. To put it another way, what happens to the legal issue that is sitting on the chair’s desk has a direct correlation on the university’s liability.
When one conducts a bit of research into current higher education administrative issues, the lack of published work on the intersection of the roles of departmental chairs and university lawyers is noteworthy. Yet, a PhD thesis published in 2012 by Carol Hustoles, the vice-president for legal affairs and general counsel of Western Michigan University touches on this very subject. Dr. Hustoles surveyed almost 300 university lawyers in the United States to ascertain their perceptions and experiences regarding how adequately department chairs are dealing with the large variety of legal risks they confront in their role as administrative leaders.
Dr. Hustoles asserts that a chair’s acts or omissions in navigating the legal issues inherent in their administrative role can lead to unnecessary and expensive litigation for the university, thereby diverting efforts and consuming time and resources which might otherwise be devoted to essential education objectives. Getting it wrong can be costly to a university on several levels.
Dr Hustoles’ survey data can be broken down into two main categories. First, the study identifies the issues on which Chairs most frequently consult lawyers; and issues on which lawyers spent the most time. Second, the study outlines the types of legal issues that are most problematic for the chairs, have the most potential adverse impact on the university’s legal liability and are therefore the essential topics for further chair training. In other words, the study is looking at the lawyers’ perceptions not just of what they are consulted on by chairs, but also the issues they believe chairs should be consulting on more often because of the difficulty or risk involved.
Lawyers were most frequently consulted by chairs, and consequently spent most of their work time dealing with issues associated with legal agreements, compliance with legislation and privacy. This is expected given the obvious connection each has with the traditional notion of a lawyer’s role.
Much more interesting, and with far-reaching consequences for a university and its administrators, is what the data revealed about lawyers’ perceptions of issues on which chairs should be consulting much more frequently and receive additional training. At the top of the list were cases dealing with sexual and other forms of harassment, together with discrimination claims.
The results of Dr. Hustoles’ study are particularly relevant for Canadian universities. The response of universities to sexual harassment and discrimination on Canadian campuses has certainly been a live issue in the past year. The media has covered several high-profile stories and many universities have undertaken to review their policies and programs to ensure that their campuses are safer for everyone.
The highlighting of Dr. Hustoles’ study is not intended to single out or disparage chairs. They were merely the focus of this particular academic study. As a university community, we can all strive to do better in preventing harassment and supporting victims.
Dr. Hustoles’ study highlights the crucial role that chairs can play in responding to legal issues, particularly as Canadian universities move into the next phases of rolling out their updated sexual harassment and discrimination programs. Reducing legal liability and managing risk is a crucial, but underemphasized and underutilized, role of department chairs. But the burden is not the responsibility of our department chairs alone.
University legal counsel can assist both chairs and their institutions by proactively signalling their availability for consultation (ideally in the earliest stages of an arising issue), by acting as a sounding board or general resource to chairs and prioritizing training about the risks and responsibilities chairs have assumed.