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Commentary: In-House Counsel: Challenges and Rewards

In 2000, after almost 10 years in private practice, I began serving as in-house counsel at a major university with a current student population of more than 13,000. I was initially charged with the responsibility of establishing an office of legal affairs, which inherently involved negotiating a change in campus culture. In establishing a campus presence, I was met with a few challenges.

There were some employees who were uncertain of my role and some employees who applauded the development of a legal affairs office. However, some employees viewed me with suspicion and were apprehensive that I would interfere with time-honored ways of doing things.

My challenge was to send a clear message that the office was a resource designed to support the endeavors of faculty and staff by complementing the mission of the university by protecting its interests. Because I understood the importance of valuing and cultivating the institutional knowledge and talents of long-time employees, I relied on their wisdom, and they assisted me greatly in the transformation of the campus community.

In addition to addressing the campus employee infrastructure, I also had to develop my understanding of higher education law. My private practice experience provided me with the necessary skills to dissect an issue or controversy from the perspective of competing interests with a heightened sensitivity for potential litigation. While my civil trial experience prepared me for dealing with the legal ramifications of a complexity of issues, I was still new to the practice of law in a postsecondary setting. I quickly learned that higher education law is a unique body of law that fits neatly under a huge umbrella of broad legal areas.

Indeed, in higher education, in-house attorneys deal with a  myriad of legal issues.

Without providing an exhaustive list of examples, in-house attorneys deal with issues ranging from employment matters, constitutional law, intellectual property, discrimination and contracts to personal injury. In providing sound advice and drafting documents, we must navigate a variety of federal laws, state laws, various regulations and policies. Education law is, at times, unique because it encompasses issues that generally surface in the context of a higher education setting, such as tenure or academic freedom.

In-house counsels must remain current because, as with all law, education law is malleable and the legal terrain is subject to sculpture by case law. The recent announcement that the United States Supreme Court will once again revisit Grutter v. Bollinger to hear a challenge to a university’s use of race in undergraduate admission decisions in the case of Fisher v. University of Texas at Austin speaks directly to this point.

In the 2003 landmark case of Grutter, the University of Michigan’s law school faced a challenge to its race-conscious admissions program. The named plaintiff in Grutter alleged that the university’s law school’s practice of considering race in admissions decisions violated the Equal Protection Clause, Sections 1981 and 1983 and Title VI.

The law school’s admission policy sought a diverse student population. Consistent with this goal, the law school’s admission policy considered racial and ethnic diversity with special reference to the inclusion of students from groups that had a history of discrimination such as African-Americans, Hispanics and Native Americans.

In Grutter, the Supreme Court upheld the university’s admission practices, issuing an opinion affirming that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”

The opinion noted that access to legal education must “be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.” The high court endorsed these efforts on the part of the law school to achieve a “critical mass” of minority students.

After institutions settled into the policy implications of Grutter, in 2012 the Fisher case once again places the issues of the use of race and affirmative action in the spotlight.

Whether Fisher declines or reaffirms the holding of Grutter, in-house counsel will be challenged to develop and interpret policies related to diversity within a legally permissible framework.

Challenges are an inherent part of employment. Despite these challenges, overall, my experience as an attorney in higher education has been rewarding. I enjoy being a part of a climate that values proactive legal solutions that impact institutional policy for the protection of the campus community. Because of my position, invariably, students will stop by my office to ask questions about law school and the practice of law, and I enjoy encouraging and mentoring these students. Most importantly, counsels at colleges and universities are afforded the valuable opportunity to support institutions that actively engage in the positive transformation of lives for the greater good of society. D

Laverne Lewis Gaskins is the university attorney at Valdosta State University.

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