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How to Manage ‘Regulatory Overload’: Balancing Compliance with Educational Objectives

Leadership and Management Risk Management and Compliance

How to Manage ‘Regulatory Overload’: Balancing Compliance with Educational Objectives

As federal regulatory requirements grow in number and complexity, many institutions are struggling to balance compliance with fulfillment of their educational missions, says Peter Lake, a professor of law and director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law.

Too little focus on compliance exposes institutions to potentially severe penalties. Too much focus on compliance makes institutions start to resemble what Lake calls “Compliance U,”—an institution that is an effective “compliance operation,” but that no longer focuses on educational objectives and outcomes.

Lake is author of the newly published Rights and Responsibilities of the Modern University: The Rise of the Facilitator University. It offers significant updates to the landmark 1999 book The Rights and Responsibilities of the Modern University: Who Assumes the Risks of College Life? co-written with Robert D. Bickel.

In the upcoming online seminar “Regulatory Overload in Higher Ed: Beware of ‘Compliance U,” Lake will demonstrate that it is possible to meet regulatory requirements without compromising educational missions. He will offer guidance on what institutions can do to avoid falling into the “Compliance U” trap and how they can help their administrators, educators, and staff members keep compliance efforts in perspective.

Lake recently participated in an email interview with Magna Publications, which will host Lake’s seminar on September 11. For information about this seminar, see www.magnapubs.com/catalog/regulatory-overload-in-higher-ed-beware-of-compliance-u/.

Magna: What are some of the key changes in the higher education legal landscape since The Rights and Responsibilities of the Modern University was published in 1999?

Lake: After the first edition was published, I spent most of my time speaking about legal cases dealing with student safety, usually in connection with alcohol risk. Case law and dangers from alcohol were the focus.

Since then the focus on case law and alcohol has broadened. College safety issues related to violence and sexual misconduct have been increasingly emphasized, and there has been a noticeable shift in the dialogue relating to the regulatory guidance coming from the Department of Education (and now, the Department of Justice). Campuses are now more concerned than ever about compliance with regulatory guidance, and a much wider range of safety issues.

There has also been an ascendance of risk-management culture. Getting people to talk about law, risk management, and higher education was tough in the 1990s. We now see many campuses adopting enterprise risk management (ERM) systems and other risk management metrics. Prevention is slowly replacing reaction to incidents as a driving force of change.

Higher education lawyers are also evolving rapidly. The composition of the college attorney membership group, the National Association of College and University Attorneys (NACUA), has been broadening, and many colleges are expanding their legal staffs.

Perhaps even more significantly, the legally trained are assuming more administrative roles than ever, as “JD preferred” becomes the norm for many jobs, such as Title IX coordinators and discipline officers.  Lawyers are even becoming college presidents. The presence of law on campus has expanded outside the courtroom to a much broader sphere of influence, impacting the way we make educational decisions.

I have also seen a radical shift in public expectations of college safety. In 1999 it was somewhat controversial to argue that colleges should provide reasonable care in an educational environment. Yet in 2011, in connection with the roll out of the Title IX guidance from the Office of Civil Rights, Vice President Joe Biden stated, “Students across the country deserve the safest possible environment in which to learn.” Is a safest possible standard achievable or desirable? How did we move so quickly from one set of expectations of safety to another, more rigorous, set of expectations? 

Magna: In the new edition of Rights and Responsibilities, you assert that while many institutions aren’t prepared to face current legal and regulatory challenges, others are at risk of becoming “Compliance U.” What characterizes “Compliance U”?

In “Compliance U” administrators are tempted to concentrate more on regulatory compliance than on education. Compliance U baits us to become overly legalistic, defensive, bureaucratic, and risk averse.

Institutions that have not developed a sensitivity to regulatory requirements face grave consequences for non-compliance; many administrators have little experience dealing with a highly regulated environment and struggle with interpreting and implementing regulatory mandates.

Magna: Would you offer a hypothetical example of how overzealous compliance efforts might jeopardize an institution’s academic mission or its academic freedom?

Lake: I can be entirely non-hypothetical! Recent Title IX guidance on sexual assault and harassment may be essentially requiring colleges to create a form of a college “court” system to manage certain risks in the learning/living environment. Should the government be able to force us to create such systems? Are college courts consistent with our educational focus? 

I believe whole-heartedly that we must tackle the very important issues of sexual assault and harassment, but I hope we will not lose our focus on education-based solutions to preventing discrimination by over-emphasizing legal solutions. There is great hope in solutions grounded in voluntary compliance to combat discrimination.

I think the Supreme Court may have some mighty work ahead on a future docket trying to sort out the rights of academic freedom and autonomy versus the rights of the federal government to impose such restrictions in the disbursement of federal funding via student loans, grants, etc.

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