Colleges or Caretakers?

Erwin Chemerinsky reviews Louis H. Guard and Joyce P. Jacobsen’s “All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education.”

By Erwin ChemerinskyFebruary 16, 2025

• Law

• Politics

I AM OFTEN asked what I would do if I were not a law professor. If I had not gone to law school, I would have been a high school social studies teacher. If I were a lawyer, but not a law professor, I always thought I would have been a civil rights lawyer. That is why I decided to go to law school a half century ago: I was inspired by the civil rights lawyers of the 1950s and 1960s. But having been a dean for 16 years, I think that if I were to leave academia, I would want to try to be a campus counsel.

Campus counsel are in-house lawyers for universities. They deal with a multitude of issues and make an enormous difference in the lives of students, staff, faculty, and administration. I constantly bring our campus counsel a myriad of difficult issues, and I, of course, am just one administrator on a very large campus. Although I obviously am a lawyer, I am always mindful of the distinction between being a client and being an attorney. And I have been tremendously impressed and well served by the campus counsel I have worked with during my two deanships.

Louis H. Guard and Joyce P. Jacobsen have written a terrific book that captures what campus counsel do and what makes the position such a challenging and exciting one. As they detail in All the Campus Lawyers: Litigation, Regulation, and the New Era of Higher Education (2024), there has been a great increase in universities relying on in-house counsel. Besides being more cost-effective than relying exclusively on outside attorneys, campus counsel have expertise in the issues facing universities. All the Campus Lawyers describes what campus counsel do and the many challenges facing those in the role.

Guard and Jacobsen write from personal knowledge and experience. Guard is vice president and general counsel of Hobart and William Smith Colleges. Jacobsen is a former president of that same institution. Although their book is focused on campus counsel, it really is about much more. All the Campus Lawyers is a thorough description of the problems, and especially the legal issues, that universities face today. The book is divided into two parts. Part one, which constitutes two-thirds of the book, is about the “new campus legal landscape.” It addresses many of the issues campuses are currently grappling with, including civil rights, free speech, admissions, advancement, governance and oversight, and the business of higher education.

All the Campus Lawyers should be of great interest to all who are concerned about higher education, even if they are not particularly interested in the role of attorneys working for universities. Guard and Jacobsen have done a stunning job in their research, using examples from schools across the country. They especially focus on recent events, making the book a timely primer of what is happening in universities today. They do a superb job of summarizing the many cases that have involved colleges and universities. Indeed, in their introduction, they present, in a graphic, an indication of how much such litigation has increased. Their last chapter looks ahead to the issues likely to confront campuses in the future.

Part two focuses on the role of the campus lawyer. It explains their role in campus decision-making and the unique ethical issues encountered by campus counsel. Although this section of the book might be of more interest to those within universities, Guard and Jacobsen do an excellent job weaving the two parts of the book together.

Throughout, they offer an accurate presentation of how the legal landscape for colleges is changing. For example, in chapter one, they describe the increase in civil rights litigation, including the ever-increasing duties of schools to accommodate students with disabilities under the Americans with Disabilities Act. In chapter two, they present many of the issues concerning free speech on campus. Even though the book was published in 2024, much has happened since its publication, raising countless new concerns regarding how universities should deal with protests, including student encampments.

I found chapter three, “Students, Student Life, and Institutional Liability,” to be particularly insightful. The authors focus on the duty of care owed by universities to their students. They point out that there have been three distinct eras. First, there was “a period dominated by the concept of in loco parentis,” when schools were said to be broadly responsible for protecting students. Then there was what Guard and Jacobsen call the “bystander era,” when courts minimized the duty of schools to protect students. We are in a third era, the so-called “caretaker era,” when courts again see schools as having the responsibility to protect students. Ask any dean or administrator and they will strongly agree with this. One of the most common refrains from students today if they are upset or offended is that they feel “unsafe.” This is their way of saying that it is the college’s duty to protect them—and courts often side with students in their claims against universities.

Chapter four, on admissions to universities, is especially timely, particularly in light of the Supreme Court’s decision in June 2023, in Students for Fair Admissions v. President and Fellows of Harvard College, which eliminated race-based affirmative action by both public and private universities.

Although I tremendously enjoyed reading the book and learned a great deal from it, I recognize that its strengths are also its weaknesses. In the authors’ efforts to be comprehensive, many important topics receive only brief treatment. For example, the “demographic cliff”—a significant decrease in the college-aged population “predicted to hit in 2025”—as well as what it will mean for universities, is only lightly discussed. The dramatic increase in the costs of education is given little examination, particularly as to what this means for access to higher education and students’ career paths. Nor is there much examination of the decrease in public funding for higher education in many states and what that means for state schools and their faculty and students. There is also relatively little discourse about the role of online education. To be fair, each of these topics warrants a separate book—and such books have been written—and there is only so much one can do in a chapter.

Further, the authors write in a neutral tone and are rarely prescriptive. For example, they describe the tensions in dealing with allegations of sexual harassment and sexual assault, and how to balance the duties of protecting victims with providing due process for those accused, but they offer no views as to how best to strike this balance. They describe the laws prohibiting the teaching of critical race theory, but make no attempt to evaluate whether such laws should be deemed to violate the First Amendment. That, however, would have been a different book from the one the authors wrote.

My primary criticism of the book—and it is in the context of overall greatly admiring it—is that it treats colleges and universities as more homogeneous than they really are. There is an enormous range, from the most elite public and private schools to community colleges to proprietary schools to entirely online programs. Understandably, in a relatively short book, the authors are painting with a broad brush, and their focus is primarily on the common issues facing all colleges and universities. But there are times when those issues are more different than similar.

What Guard and Jacobsen have done is write an informative exploration of the legal dilemmas confronting universities today and the ways they relate to the role of the campus counsel. It is a book that deserves a wide readership among those engaged in higher education and those who care about it.