Legally Speaking (Insight on the Issues)
- By Peter F. Lake
- February 1st, 2018
Many modern higher education administrators routinely spend the day shuttling among various teams (sometimes called “committees” or “task forces,” inter alia) with a variety of charges. “Teaminess” has become a defining feature of today’s hyper-busy higher education culture. Teamwork can sometimes feel overwhelming and very demanding.
The Legal Significance
Teamwork promotes positive legal outcomes. Here, I would like to stress three critical ways teamwork helps higher education meet legal obligations.
First, our governing bodies have legal duties of obedience to follow the law—and fiduciary duties. The operationalization of these duties falls to senior campus leaders and other administrators, and often comes under the heading of compliance. Campus compliance obligations have multiplied exponentially in recent years: the only practical way to address these obligations is through extensive reliance on teams. Team culture has evolved largely via operational necessity, not direct mandate; only a few states like Virginia require campuses to have specific teams. Nonetheless, the law often encourages campuses to have teams via what we might call “soft” mandates. For instance, the Clery Act does not mandate campus safety teams, but we are asked to provide some information on our team operation in our annual security reports—nudge, nudge, wink, wink. Reports on the heels of the Virginia Tech incident extolled the virtues of teamwork in breaking down information “silos” and improving decision-making in critical incident management. These reports led to specific legal reform in Virginia, but for those of us in many other states, experiences in Virginia have been persuasive in building our team efforts.
Alternatively, consider that Title IX guidance encourages the creation and identification of a Title IX team to help manage Title IX compliance obligations. “Soft” mandates are impactful precisely because teams facilitate successful compliance efforts, which would otherwise be “mission impossible” without such collaborative efforts. As a result, our lawyers can report to our governing bodies on the specific ways in which duties are being fulfilled—or where compliance efforts may need additional emphasis or resources. Governing bodies depend on teams to fulfill their duties.
Second, higher ed institutions typically have safety-related duties to exercise reasonable care in operations. Over the years, courts and juries have treated higher ed institutions favorably under reasonable care standards. When held to account, our industry can often demonstrate that it has used much more than simply reasonable care. One way higher education has responded is by deploying teams of skilled professional administrators to perform “due diligence” (a way of talking about compliance, including compliance with duties of reasonable care). There are positive indications from the legal system that having and using teams of skilled professionals helps campuses meet the required legal standards when challenged in court; even in the court of public opinion. Lawyers thus rely on successful teamwork in defending institutions. You may not have noticed this because so few situations ultimately mature into litigation. Teamwork sometimes operates like an invisible shield.
Third, good teamwork has the magic of uncovering talents, skills, and leadership. The law has a Simon Cowell-like tendency to make us focus on what we are not doing well, or where we can improve. However, teamwork can, and should, be the occasion for celebration of exceptional talents, skills, and leadership. We have all been part of team where someone steps up, or has that magic just-what-we-need-now skill that lightens and improves our work. One value of communal efficacy is improved individual efficacy.
Potentially an Uphill Climb
Time spent on teams does not always produce moments of exuberance, and teams do not always operate in ideal ways. Teamwork often requires exacting attention to details that most individuals will never notice. The next time you find yourself looking at the clock in a team meeting—or wondering, “Why are we doing this?”—try to remember the greater significance of work that at times can seem mundane, even grinding. Teamwork is the operational foundation of compliance with the duty of obedience; is indispensable for due diligence under the reasonable care standard; and has the potential to improve outcomes by developing and identifying leaders and talent. Teamwork makes the completion of our missions possible, legally speaking.
This article originally appeared in the February 2018 issue of College Planning & Management.
Peter F. Lake is professor of law, Charles A. Dana chair and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law in Gulfport, FL. He is the author of The Four Corners of Title IX Regulatory Compliance: A Primer for American Colleges and Universities (Hierophant Enterprises, Inc. 2017). Professor Lake can be reached at email@example.com.