Thursday, August 15, 2019
Ben Trachtenberg (Missouri), The People v. Their Universities: How Popular Discontent Is Reshaping Higher Education Law, 106 Ky. L.J. ___ (2020):
Surveys taken since 2015 reveal that Americans exhibit stark partisan divisions in their opinions about colleges and universities, with recent shifts in attitudes driving changes to higher education law. In recent years, Democrats have become slightly more positive about higher education. Concurrently, Republicans have become extremely more negative, and a majority of Republicans now tells pollsters that colleges and universities have an overall negative effect on the country.
Particularly in legislative chambers controlled by Republicans, public and elite dissatisfaction with higher education has led to legal interventions into the governance of universities, with new laws related to faculty tenure, the treatment of undocumented immigrant students, the use of state funds for disfavored programs, the composition of university governing boards, and campus speech, among other topics. At the federal level, during the Obama Administration advocates persuaded the Department of Education to demand sweeping changes to how institutions adjudicate allegations of sexual harassment and sexual assault. At the behest of different advocates and critics, Trump Administration officials have rescinded the prior guidance and are in the process of enacting new regulations on the same campus processes.
Higher education has real problems—such as skyrocketing tuition—which inspire real anger. Right-wing media outlets amplify this discontent, and politicians respond to voter outrage with hearings and legislation, deepening the lack of confidence. These phenomena are likely to endure and even to increase in intensity. Accordingly, higher education law has entered a new era in which college and university leaders must anticipate growing legislative intervention into day-to-day campus operations. Remaining true to institutional values in a newly difficult legal environment will challenge higher education administrators across the country, both at private and at public institutions. In particular, leaders of public institutions will face increasingly daunting tasks in states with conservative electorates.