INTRODUCTION
A fox knows many things, but the hedgehog knows one thing.
This special issue of the Journal of College and University Law honors Professor William A. Kaplin (“Bill”), who was the intellectual architect of higher education law.
At a time few institutions had an in-house general counsel, Bill had a simple, but profound insight—virtually every aspect of the law applies differently in higher education than it does outside of academe. In other words, the unique circumstances of a campus lead to outcomes that are subtly, if not dramatically, different.
Bill’s insight was inspiration for his treatise, which became the “bible” for higher education practitioners. By systematically cataloging how the law was different when applied to campus, he ensured that every attorney—both in-house and external—recognized academia’s unique environment. His treatise details why and how constitutional law, employment law, contracts, tax, intellectual property, and, in some instances, even civil litigation are subtlety different in the higher education context. Unlike the scholars who developed the fields of federal courts, law & economics, or critical race theory, all of whom advocated a different analytical framework, Bill demonstrated that when colleges or universities were involved, there are unique considerations and, often, different outcomes.
Bill’s contributions extend far beyond his treatise. In an era when law reviews rarely published scholarly articles with a higher education orientation, Bill was an early editor of JCUL. At a time when there was no serious discussion of the intersection of the law and policy in higher education, Bill played a major role in the development of Stetson University’s Center for Excellence in Higher Education Law and Policy and the annual National Conference for Law & Higher Education.
Bill’s teaching focus was the “field of constitutional law, and in particular, those parts of the field concerning constitutional analysis and decision making,” and he also was the founder of Catholic University’s Law & Public Policy Program. However, his legal scholarship was largely confined to writing and then updating his monumental treatise.
Yet, for all his significant accomplishments as a scholar, teacher, journal editor, academic center director, or conference founder, Bill’s greatest legacy is the lesson that every university general counsel should, and indeed must, learn from him. That lesson comes not from something he explicitly said or wrote, but by inference from his treatise, the scope of articles published in JCUL, and the myriad of topics discussed and debated at the center and conference he helped to establish. Bill’s treatise demonstrates that almost every aspect of the law applies differently on campus, and the university general counsel must know something about all facets of the law. Because JCUL is publishing articles on a variety of topics from a higher education perspective, the institution’s chief legal officer should be familiar with those subjects. If centers and conferences are exploring how legal principles influence and inform educational policy, then the higher education general counsel must also understand the connection. Bill’s lesson for a university general counsel is simple—be a Fox, not a Hedgehog.
This article examines the complex implications of the university general counsel being a Fox, counsel who knows many things, rather than a Hedgehog, counsel who knows one thing. First, it explains the importance, if not necessity, of a university general counsel being a Fox. This was particularly true when institutions first began to hire. Second, it illustrates why a large contemporary university needs a variety of Hedgehogs in the office of general counsel but must still have a Fox as the university general counsel. Third and most importantly, it explores the seven new paradigms that characterize the Time of Trump. These seven new paradigms demand new innovative solutions. Only a Fox, albeit one supported by numerous Hedgehogs, can guide higher education administrators through these turbulent times.
I. THE UNIVERSITY GENERAL COUNSEL MUST BE A FOX
The university general counsel, the person who serves as chief legal officer of the institution, must be a Fox. An expertise in constitutional law, employment law, corporate law, intellectual property, or civil litigation might make one a distinguished professor or a well-respected senior partner in a large law firm, but it does not make one an excellent general counsel for an institution of higher education. Instead, to be an excellent general counsel for a college or university, one must have basic knowledge about almost every facet of law. A higher education general counsel must be able to focus on the entire forest, rather than just one clump of trees. In other words, general counsel in this context must be able to focus on all the issues confronting the institution instead of a discrete set of issues that, while important, impact only a small part of the institution. The institution’s general counsel must have a rudimentary understanding of virtually every legal issue.
Foundationally, all corporate in-house general counsel must be generalists, but it is particularly important for the higher education general counsel to be a Fox. This is so for two reasons. First, the typical corporation focuses on one or two business activities, but institutions of higher education engage in a diverse range of different activities. The corporate general counsel knows many things about one big thing, the corporation’s major activity. In contrast, the higher education general counsel must know many things about many things. For example, the general counsel of a health system knows about all aspects of healthcare, but has no reason to know about providing education, operating an apartment complex, running a chain of restaurants, or directing a professional sports team. Conversely, if the institution is a large research institution with an integrated health system and Power 4 athletics program, the chief legal officer must know many things about teaching undergraduates and graduates, student housing, dining services, law enforcement, research administration, health care delivery, academic freedom, shared governance, and an athletic program that is analogous to the NBA or NFL.
In many States, the flagship public land-grant institution is the largest employer, the largest landlord, largest restaurant in terms of meals served, largest health care system, and the largest land owner. Indeed, if large universities were stand-alone communities, they would often be the size of small cities with 50,000 or more people on any given day. Their annual budgets are often in the billions of dollars.
Second, as Bill taught us, higher education is different and higher education law reflects those differences. Consider the almost universal institutional practice of tenure. Except for the federal judiciary, higher education is the only part of American society where an individual can achieve a lifetime appointment, often at a six-figure salary, and maintain it for decades despite clear declines in productivity or demand for their classes. Although the private sector and military immediately terminate those who fail to meet performance standards for promotion, higher education gives a grace year to those who fail to achieve tenure. In other words, after telling someone that their performance is inadequate and their services are not needed, institutions continue to employ them in the same role for another year.
Similarly, consider higher education’s practice of shared governance which allows faculty, who cannot be removed by the Board, to decide policy decisions or make recommendations that are often rubber stamped by administrators or boards. A good leader will always seek input from a diversity of persons and viewpoints before deciding, but a good leader will never let a narrowly focused group actually make a decision. Certainly, faculty have expertise in their fields and that expertise should receive significant deference in curriculum matters, but being the leading expert on a particular subject does not qualify one to make decisions on the complex issues facing the university. There was a time when even state flagship institutions were small enterprises which could be run in a collaborative manner. With universities becoming multi-billion-dollar enterprises that are highly regulated by the state and federal governments, those days are long gone.
Moreover, there are laws that apply to higher education, but do not apply to other segments of society. For example, one could be an employment lawyer for years and be an expert on Title VII but be completely unaware of Title VI or Title IX. However, a university general counsel will need to know how Title VI applies to admissions and scholarships and how Title IX applies to athletics and sexual assault. The private sector does not worry about the federal or state constitutions, freedom of information acts, open meetings statutes, or public procurement codes, but the chief legal officer will have to grapple with these restrictions on a daily basis.
II. IN THE TWENTY-FIRST CENTURY, THE FOX NEEDS HEDGEHOGS
This Article focuses on the university general counsel or chief legal officer and not on those numerous attorneys who work in an office of the general counsel at a college or university and who regularly provide legal advice to the institution’s administrators. The reason for this narrow focus is simple: there is a fundamental difference between the role of higher education general counsel and the role of their subordinates. While attorneys within an office of general counsel certainly provide advice on what the law requires or prohibits, provide counsel on the development of policy, and seek to be problem solvers within the confines of the law, more often than not, these individuals concentrate on a narrow, discrete area of the law such as health care, business transactions, employment law, student affairs, athletics, or intellectual property. They focus on a tree or a clump of trees rather than the whole forest. In a sense, they are not higher education lawyers, but lawyers with a particular area of expertise who work at a college or a university. With their narrow expertise, they are very much Hedgehogs—they know one thing well.
For large universities in the third decade of the twenty-first century, the presence of Hedgehogs is essential. A public flagship land-grant institution with an integrated medical center and a Power 4 Conference athletics program likely will have tens of thousands of students (and almost as many employees), receive several hundred million dollars in research funding, provide health care to much of the State, develop numerous patents, and conduct sporting events that resemble NFL or NBA games. The institution must comply with a myriad of laws and regulations including discrimination laws for both students and employees, health care compliance, research misconduct, immigration, export controls for national security purposes, and NCAA and College Sports Commission. Without the attorneys who focus on narrow areas of the law, the institution cannot function.
Moreover, as Martin Michaelson noted in his review of the fourth edition of Bill’s treatise in 2007, there was “interminable thunderstorm of law—represented by the more than three-fold expansion of this treatise—that has poured down on higher education institutions in the past quarter century.” In the nearly two decades since Michaelson wrote those words, his “thunderstorm of law” has become a flash flood. For example, since 2007, higher education attorneys have dealt with the Title IX Dear Colleague Letter, the ensuing litigation over due process in sexual assault cases, the challenges to racial preferences in higher education, the end of the NCAA’s amateurism model, and, of course, the challenges of Covid. This does not include special challenges presented in the Time of Trump, as discussed below.
Yet, the complex legal realities of the contemporary university do not diminish the need for the chief legal officer to be a Fox. While the university general counsel in the year 2025 may spend more time managing the Hedgehogs than practicing law, it is still essential that the Fox is focused on the institution as a whole rather than a particular division or department. If the Fox is wise, the Fox will listen to the Hedgehogs’ recommendations and seriously consider their advice. Still, it is the Fox, not some consensus of the Hedgehogs, who must make the determination as to what legal advice to give the President or Chancellor.
Moreover, as institutions have become more complex, the role of the university general counsel has evolved. There was a time, particularly in the days before in-house counsel became common, when lawyers were not involved in decision-making, but simply engaged after a decision had been made. The attorney’s job was to fit a decision that had already been made into the confines of what the law requires and what it prohibits. Today, the general counsel’s role is more of a strategic partner for the institution. The institution’s senior leader will be part of the President or Chancellor’s cabinet and play an active role in providing policy advice before the decision is made.
III. A FOX IS ESSENTIAL IN THE TIME OF TRUMP
When institutions decided that they needed an in-house counsel in the last decades of the twentieth century, the natural response was to hire a Fox or perhaps a Fox and a few younger Foxes to staff a small general counsel’s office. As higher education became more regulated and there was a need for more specialists, the university general counsel offices had to hire Hedgehogs. The model was a Fox serves as chief legal officer and supervises a group of Hedgehogs. Until recently, it seemed that this model would continue to be the norm. Then, everything changed—America entered the Time of Trump. The Time of Trump poses unprecedented and, in some instances, existential challenges for higher education. The Time of Trump does not just represent a new paradigm—it represents seven new paradigms.
Many of these seven new paradigms are a direct result of the forty-seventh President, but others are the result of Supreme Court decisions, the transformation of intercollegiate athletics over the last four years, and a broad-based loss of confidence in higher education. To fully understand the implications of these paradigms and why a Fox as university general counsel is a necessity, one must briefly explore each of these paradigms.
First, the Supreme Court’s decision in Students for Fair Admissions v. President & Fellows of Harvard College removes race as a factor in higher education decision-making. To explain, any consideration of race—even if designed to help racial minorities—is subject to strict scrutiny. To survive strict scrutiny, the institution must articulate a compelling governmental interest. Historically, the Court has recognized three compelling governmental interests: remedying the present-day effects of past intentional discrimination by the institution; in higher education, obtaining the educational benefits of a diverse student body; and preventing prison riots. Just as significantly, the Supreme Court has explicitly rejected many other proposed compelling governmental interests, including remedying past societal discrimination; maintaining racial balance; correcting underrepresentation of minorities; providing faculty role models for students; increasing the number of physicians in underserved areas; and making “the objective of supplier diversity a reality.” Because most higher education institutions do not have present day effects of past intentional racial discrimination, they have relied on diversity. Moreover, while the Court recognized diversity only in the context of a student body, colleges and universities extended the diversity rationale to faculty and staff hiring and even procurement. Although the Court had rejected underrepresentation as a compelling governmental interest, institutions frequently focused on the underrepresentation of women and minorities.
Yet, in Students for Fair Admissions the Court emphatically rejected diversity as a compelling governmental interest. Consequently, the sole justification for considering race in decisions regarding admissions, scholarships, faculty and staff hiring, and procurement disappeared. As most institutions cannot rely on present day effects of past racial discrimination by the institutions, higher education may not consider race. Moreover, by explicitly holding that federal anti-discrimination laws apply to individuals rather than groups, and that litigation procedures are the same for everyone, Ames v. Ohio Department of Youth Services reinforced Students for Fair Admissions.
Second and relatedly, the Trump Administration has relied on Students for Fair Admissions to justify an aggressive campaign to change the culture of higher education. After the murder of George Floyd, universities rushed to issue statements of solidarity and to embrace programs promoting an ideology that Yaschia Mounk calls the “identity synthesis.” Yet, after the October 7 Massacre in Israel, many university presidents remained silent or muted as their campuses engaged in increasingly threatening activity, including calling for genocide of the Jewish population, bombarding Jewish students in university buildings, or turning campuses into pro-Palestinian encampments.
The President has responded to these developments by seeking to end so-called Diversity, Equity & Inclusion or “DEI” programs. Although the Department of Education’s guidance documents have been enjoined in the courts, the Administration continues to utilize the same broad interpretations of the Equal Protection Clause and Title VI theories. Similarly, the Executive Branch has insisted that Title IX’s prohibition on sex discrimination does not extend to gender identity. Moreover, it has taken actions to ensure that transgender women do not play women’s sports, and initiated litigation against States that permit transgender women to play in women’s sports at the high school level.
Third and relatedly, the Executive Branch has sought to remake federal funding of research. Perhaps most significantly for higher education budgets in the long term, the agencies have tried to reduce the administrative overhead rate paid on federal grants. Historically, institutions have received an administrative overhead rate in excess of fifty percent, but the agencies intend to lower that rate to fifteen percent. While federal trial courts have blocked these measures, higher education associations have offered a compromise that is still substantially below what institutions received before 2025. Moreover, to the extent that previous grants conflict with President Trump’s priorities, agencies have attempted to cancel grants. The courts have blocked these efforts, but, in the long term, grants may be simply denied or the new regulations may permit cancelations.
Fourth, President Trump has embraced the theory of the unitary executive. Defying long-standing tradition, he has fired members of the National Labor Relations Board and other independent agencies, significantly restructured the Department of Education without congressional approval, and enforced the federal statute prohibiting in-state tuition for persons who are not lawfully present. While the lower federal courts often enjoined these initiatives, the Supreme Court—at least so far—has allowed them to proceed. Most significantly, the Court has curtailed the ability of federal trial courts to enter universal injunctions.
Fifth and conversely, in a development that may slow the President’s initiatives and those of future administrations, the Supreme Court has declared that the views of the Executive Branch concerning the meaning of statutes and regulations shall no longer receive judicial deference. To explain, the Constitution assumes that the final “interpretation of the laws” would be “the proper and peculiar province of the courts,” but, in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., the Court created an exception to the principles. Under Chevron deference, if a statute administered by the Executive Branch was ambiguous, the judiciary must defer to any reasonable interpretation of the Executive Branch.
Last year, in Loper Bright Enterprises v. Raimondo, the Court overruled Chevron. As the Court observed, “Chevron’s presumption is misguided because agencies have no special competence in resolving statutory ambiguities. Courts do.” Chevron’s grave error was to assume “the inquiry is fundamentally different just because an administrative interpretation is in play. The very point of the traditional tools of statutory construction—the tools courts use every day—is to resolve statutory ambiguities.” Moreover, because properly promulgated regulations have the force and effect of a statute, Loper Bright is equally applicable to an agency’s interpretation of a regulation.
For higher education, the consequences are clear—it is much easier to successfully challenge the often novel and expansive interpretations of the Executive Branch. For example, the Trump Administration has taken an extraordinarily broad view of Title VI, Title VII, and Title IX. Prior to Loper Bright, the judiciary would defer to those interpretations of the statutes, even though the federal government is stretching precedents. After Loper Bright, federal officials must convince the judiciary that their interpretation is the best interpretation. Instead of the unquestioning acceptance that higher education once applied to pronouncements from the U.S. Department of Education, institutions must be skeptical of any novel interpretation from any administration.
Sixth, the Supreme Court’s decision in National Collegiate Athletic Association v. Alston, which prompted the lawsuit and settlement in House v. NCAA, led to a transformation of college athletics. Student-athletes, who once received tuition, room, board, and cost of attendance and could transfer only if they sat out a year, now can receive a portion of a school’s athletics revenues, pursue additional funds for their name, image, and likeness, and enjoy effective “unlimited free agency” with respect to transferring. Moreover, litigation regarding the implementation of the House settlement on antitrust and Title IX grounds seems inevitable. Congress is considering legislation and President Trump has issued an executive order. The only certainty regarding the future of intercollegiate athletics is that the realities of 2030 will be fundamentally different from the realities in 2025.
Seventh, there is a loss of confidence in higher education. As Elizabeth Busch and I previously demonstrated in these pages, there is an increased awareness that higher education has failed to cultivate a campus culture conducive to the pursuit of knowledge and the preservation of our Constitutional Republic. Our institutions of higher learning have abandoned the search for truth to promote the prevailing popular opinion of the day and have failed to promulgate the legally required constitutional practices. In other words, the Nation’s colleges and universities increasingly fail to protect academic freedom of individuals by not equipping students, faculty, and staff with the skills to practice what John Inazu calls “confident pluralism.”
In the Time of Trump, every university general counsel must deal with all aspects of these new paradigms. The general counsel must tell the institution that, after Students for Fair Admissions, race cannot be a consideration and must develop new “race-neutral” strategies to achieve the institution’s objectives. The chief legal officer must cope with the Trump Administration’s aggressive efforts to transform higher education, retrench federal research funding, and test the limits of the unitary executive. The top attorney must adjust to a time when—for better or worse—there is no deference to a federal agency’s interpretations and the only certainty in athletics is uncertainty. Looming over all these challenges is the public’s sense that higher education has failed.
With the new paradigm of the Time of Trump, colleges and universities need a Fox as general counsel. The Hedgehogs are as essential as they ever have been, but the chief legal officer must have a basic knowledge about constitutional law, administrative law, antitrust, immigration, research financing, and seemingly dozens of other subjects. Moreover, while the university counsel will continue to tell administrators what the law requires and prohibits, and will provide policy advice, their primary focus is problem-solving. The new paradigm requires innovative solutions. Indeed, those institutions that fail to develop novel solutions might not survive. Those that develop the fresh solutions are likely to thrive.
IV. CONCLUSION
A half-century ago, Bill Kaplin had a eureka moment. He realized that the law applied differently in the higher education context. Special considerations applied when giving advice to an institution or its officers. That was the inspiration for his treatise and formed the basis for the lesson that every general counsel should learn—be a Fox who knows many things, not a Hedgehog who knows one big thing.
That lesson was especially applicable to those early in-house general counsels who were often solo or maybe had an assistant or two. It was equally applicable, albeit in a different way, as college and universities became more complex, and it was necessary to hire Hedgehogs who knew one big thing. If one is going to supervise a group of attorneys who have expertise in a variety of fields, one needs to have a basic knowledge of each of those fields. Now, in the Time of Trump, the lesson is essential. The new paradigms bring new challenges. If an institution is going to thrive or even just survive among all the legal, political, and financial uncertainties, it is essential that its general counsel is a Fox who knows many things. As he looks down from Heaven, Bill surely agrees.
