The Legal Landscape of Higher Ed: A High-Level Overview for Academic Leaders and Faculty

Law book and judges gavel

We’ve arrived at the final of six posts about enrollment management, yet we haven’t really touched on why enrollment management (EM) is different from just admissions, or marketing or financial aid, or some of the other areas that are often found in a typical EM portfolio. In itself, this might be instructive; if you’ve found yourself occasionally confused or overwhelmed by the complexity of the previous five topics (Marketing, Demographics, Recruitment, Admissions, and Financial Aid), you can imagine how challenging it can be to put them all together into one big package, and to get those pieces and parts to work together in harmony. It can get even more complex when other areas of your university’s administrative functions—like the registrar, orientation, student success, housing, or retention—are rolled into the mix.

Suffice it to say that enrollment management is really about managing and balancing the tradeoffs inhert in every decision a university makes about its enrollment strategy. I often tell people that the concepts of EM are much like a triangle balanced on the head of a pin: It’s easy to make any one corner go up if you push two down, or vice versa. It’s only when you try to lift all three that you realize that you might need to take a different approach.

The exception, of course, is when you have relatively abundant resources. As you might imagine, things get easier when you do.

All of our decisions are generally driven by university objectives and goals, which might include: more students, better students, more diversity, more revenue, greater selectivity, or even a different balance. Usually, you have someone to tell you what the trustees, president, provost, or CFO are hoping for. As you attempt to accomplish them, you have to figure out how to do it, what it will cost, and what you might have to give up to get there. These decisions are largely internal, and often center on the allocation of resources to effect the ends you’re seeking.

But there are also external factors that define or constrain what we can do and how we can do it. As with any business, colleges and universities, whether public or private, are bound by state and federal laws, assuming the institution accepts Title IV funding (and almost all well-known colleges do.)

Before going any further with this discussion, it’s important for me (and probably for the Academic Impressions and Oregon State University lawyers) to let you know that I’m not a lawyer, and I’m not giving legal advice here. If you have specific questions about how the law applies to you or your institution, it’s best for you to seek counsel from your college or university attorney. And if you’re reading this in some future year, some or all of what’s written here might be out-of-date and/or inaccurate, so that advice is especially important in that case.

This is my understanding of how the law applies in general to areas of enrollment management, intended as a high-level overview. It’s a place for you to begin your discussions, not for you to take to court.

Among the first things new faculty and administrators learn about in orientation is the Federal Education Rights Privacy Act, which is almost always referred to as FERPA. Passed in 1974 and revised and amended numerous times since then, the broad purpose of FERPA is to ensure that students have a right to inspect, review, and correct education records. Perhaps more importantly, students have a right to dictate—to a certain extent—what information can be shared publicly about them.

While FERPA mandates minimum protections for students, colleges and universities are free to create their own, more restrictive policies. The core of the law regarding disclosure, for instance, talks about personally identifiable information, which is itself subject to definition by each institution.

Admissions is generally less driven by FERPA than other parts of the university, because FERPA only applies to enrolled students. In other words, a student who is denied admission has no right to view the documents, notes, or other components of the application file, and neither does one who is admitted but never takes any steps toward enrollment. (Some colleges might decide that an admitted applicant becomes a student at some point before they actually sit in a classroom, so there are definitional issues at play here as well.)

Should a student enroll, they can request to see anything in the file to which they have not previously waived access (letters of recommendation, for instance.) That includes any notes or records of conversations that the admissions committee might have made while discussing the merits of the application. In response to this, some colleges destroy all of the notes and auxiliary documents once an admissions decision has been made, but before the student is informed of the decision.

The registrar and financial aid offices are generally the seat of FERPA knowledge and responsibility for compliance and enforcement. Much of this compliance centers on the release of student information to other people, such as parents, the government, and even faculty or staff. The conditions under which information can be released can seem like a legal spider’s web of nuance, which is why it’s always best to seek advice before releasing any information—even to a parent of a dependent student. Your college’s policy may vary from others where you’ve worked, so caution is always the best way to proceed.

This often seems counterintuitive to those of us who remember the non-digital era, when faculty members posted grades outside their office doors after finals. Being a faculty member doesn’t automatically entitle you to look up the grades of any student on campus, whether or not a student qualifies for a Pell grant, or the race or ethnicity they have on file with the university. Under FERPA, the release of information is determined by a legitimate educational interest. That is, do you need to know the information in order to do your job?

Fortunately, the federal government provides lots of information for people who want to understand FERPA. Unfortunately, it seems like there are exceptions in every policy or directive. Remember that it’s always best to withhold information when in doubt.

If you’ve ever served on a strategic planning committee at your college, it’s likely that the topic of diversity has taken center stage at some point during your discussions. It’s almost certainly the topic that brings the lawyers into the discussion faster than almost anything else (even more than tenure and promotion, probably.) You’ll often hear things like, “We should create scholarships for African-American students,” or, “Our university should be as diverse as the state in which we reside.” The Office of Civil Rights is quite interested in the way in which discussions like this are put into effect, because of a narrow legal construction called strict scrutiny.

Step back for a minute and think about it: People in admissions discriminate (in the sense of discernment) for a living. Some of this discrimination is not only legal but rational: You admit more students with A’s and B’s than you do with C’s and D’s. In other words, some of the discriminating you do is driven by the reason you exist in the first place. The federal government likely would not restrict discrimination like this because it would serve no constitutional purpose. But other types of discrimination (in the sense of making distinctions between and among candidates for admission or scholarships) are generally illegal except in certain, very narrowly-defined circumstances. And different types of behavior fall under different levels of scrutiny by the courts.

For instance, scholarships based on gender typically fall under “intermediate scrutiny,” which means that your reasons for making distinctions would be viewed by the government as important, and that your methods are generally consistent with the desired outcome. As is often the case with the law, it’s not possible to get a clear definition of what “important” means; there are no clear lines drawn in the sand.

But using race or ethnicity is different, however, as it falls under strict scrutiny. Strict scrutiny, which apparently is a very high legal threshold to meet (or so lawyers tell me), requires that your activities serve a compelling interest, and that your actions are narrowly focused on that outcome. You might think that getting your student body to the same level of diversity as your service area is compelling, but lawyers I’ve talked to suggest that a program like that would be akin to a quota system, which the Supreme Court has explicitly ruled is unconstitutional in the Bakke decision. While the decision is itself interesting, the background is even more so: One of the applicants who was admitted was the son of a California assemblyman who had not even applied for admission. You might think that this would have made a more compelling case, but that issue did not involve race, ethnicity, or gender.

If you want to try using race or ethnicity in admissions or scholarships, the courts are likely to look to see if you have established diversity as a compelling interest, and if you’ve first tried any other methods in order to achieve those outcomes.

The Bakke case explicitly cited Harvard’s holistic admissions policy as a good way to think about using race or ethnicity: Race is included as one factor among several in evaluating candidates. This is presumably how the Michigan Law School won its case in 2003, while Michigan undergraduate admissions lost; it gave students points based on their ethnicity.

Some resources for you: Levels of legal scrutiny are explained here. Some good background on the Bakke case is here. And the Michigan cases are here. Other cases of interest in this regard include Fisher v. Texas and, as this piece is being written, the case of Harvard and the University of North Carolina.

There are many other ways in which our legal environment affects enrollment management: The Americans with Disabilities Act, for instance, dictates the ways colleges must respond to students with disabilities in admissions and student life; The Clery Act requires admissions offices to make available information on campus crime, which can be hard for an office that is used to providing only good news to students and parents, and Title IX prohibits discrimination on the basis of sex in admissions.

As a faculty member or academic leader, you have an obligation to acquaint yourself with these laws and policies (and not just the ones that touch admissions, of course). It’s important that our students be treated in the most equitable way possible, and of course, if there are ever questions or concerns, it’s always best to consult with your college or university counsel.