Higher Education Renaissance
Peter Lake is a Professor of Law who has never shied away from addressing the controversial topics that impact higher education with his trademark candid, unique, and often humorous approach. Eric Seaborg has created this podcast series to capture the insight of Peter Lake on the status of higher education. Eric will have Peter analyzing the key issues challenging the industry of post-secondary education and the future direction of our institutions across the nation.
Higher Education Renaissance
Navigating the Legal Jungle of "Compliance U"
Have a topic you'd like us to discuss...just send us text!
What if you could uncover the complexities behind the shift towards regulations in higher education since the recession of 2008? Join us for an eye-opening discussion with Peter Lake as we navigate the intricate intersection between politics and higher education, exploring the compliance university concept and the effects of the Magnuson-Stevens Act. We'll also examine the constitutional abstraction of this issue and the EPA cases that have gone to the Supreme Court, including West Virginia versus the EPA and Sackett versus EPA.
Dive deeper into the ever-changing landscape of higher education and law as we explore how private religious colleges have managed to dodge regulations and the success of Grand Canyon University's business model. We'll also consider the sensitivity of community colleges to shifts in higher education dynamics and the potential for students to take courses abroad for a more affordable education. Listen in as we discuss the changing ambitions of law school students, the rise of certifications for particular skills, and how the 'Elvis Presley' of higher education will rise to the top by creating a platform from within the academic institution. Don't miss this opportunity to gain valuable insights into the fascinating world of higher education and law.
Welcome back. Before we get started, i wanted to express my appreciation to all of you for taking time out of your day to listen. Peter and I both know that you, as members of the higher education community, possess a passion for intellectual exploration, and throughout the series, we are attempting to foster critical thinking that will encourage you to have thoughtful conversations about these topics and, most importantly, empower you to navigate the intricate intersection between politics and higher education. So in today's episode, we're addressing an issue that holds significant relevance to higher education the role of compliance and where it is headed. As educators, students and professionals in academia, we understand the crucial role that compliance plays in shaping our institutions and the broader societal conversation. So I invite you to join me as I ask Peter to peel back the layers of compliance and the issues and provide us with this analysis of the current impact for higher education, while envisioning the future path. Together, let's embark on a journey of intellectual growth and understanding, and thank you again for joining us.
Speaker 2:From MC1R Studios. this is Higher Education Renaissance With Peter Lake.
Speaker 1:We are back after a spring semester hiatus, a very busy and hectic spring, i know, for Peter Lake, and it's good to see you, peter.
Speaker 3:Eric's, good to see you again. We're going to start right off with asking you about your term compliance you Compliance you is my shorthand for compliance university which is an era that I think we're in the middle of right now. It seems like every legal authority on the planet wants to regulate higher education, irrespective of whether those regulations make sense or are consistent, fair, affordable or otherwise effective. It's a remarkable shift that started I carbon dated back to around 2008, with the recession.
Speaker 1:Okay.
Speaker 3:I'm very noticeable to the field in 2011 with the famous Dear Colleague letter on Title IX, but really, when you look at a much bigger perspective, we're getting it every which way, from state, local, federal authorities you name it. Berkeley was in a fight with the city over how many students they could admit. I mean disputes I'd really never seen before, and right down to environmental regulation disability, you name it.
Speaker 1:Yeah, i was reading about these two cases that went to the Supreme Court West Virginia versus the EPA, which was a clean air case, and then Sackett versus EPA, which was a clean water case. One of the things I found very fascinating was the concurring opinion written for West Virginia versus the EPA. Judge Neil Gorsuch cites in his opinion, quote the explosive growth of the administrative state since 1970,. Unquote seems to be really pulling a lot of political favor into these opinions. And now the question to you is how does all this wrap into the compliance university concept that you're talking about here?
Speaker 3:Yeah, i mean I think you know today we can kind of range from the high constitutional abstraction right down to something that's going to make some people on some campuses chuckle if they're listening to this podcast. Yeah, this EPA case, which has, you know, really nothing on its face to do with higher education, actually has a lot to do with it, and we were sort of we've been watching in fact I've been our watchdog on this since Ken Starr, who since passed, came to my conference And although people were throwing rocks at him for Baylor and sexual violence stuff, he actually said something that I wish people had heard. He predicted that the Supreme Court would change its position on the so-called Chevron doctrine. The Chevron doctrine, which goes back to 1984, orwell's famous date. In this Orwellian moment, the Supreme Court engineered an opinion that gave enormous deference to federal regulatory agencies, based on minimal mandates from congressional statutes, and that's that.
Speaker 3:We've lived in that period for a long time And I say we, higher ed, didn't notice that space all that much. We're not a heavily regulated industry. Other people did, but along the way, things like the clean water people came in and sacked case and said you know, you've got to redo your water thing and it's going to cost a lot of money. And the EPA came up. The Clean Air Act stuff was starting to be coming out with. Coal bought that, and I think now there's a case in front of the Supreme Court. That isn't it interesting that it may. New Jersey fishermen may change the path of higher education without ever realizing they're doing it.
Speaker 1:Yeah, that was that Loper Bright Enterprises versus Gina Ramondo case Fascinating.
Speaker 3:Eric It's agency that regulated and basically ran out of money to put monitors on their ships. So they made the fishermen buy the monitors and these guys get paid a lot of money. I mean I was the wrong business.
Speaker 1:I mean you can get paid a couple hundred dollars an hour to sit in a boat and count mackerel, and this stems from the Magnussom Stevens Act, which was enacted in 1976 to place observers on fishermen's boats to make sure they don't break any laws. So it's like. I guess the analogy is, they say, it's like carrying a state trooper in your car to make sure you don't speed. So instead of asking Congress for more money to pay for these observers, the government decided that the fishermen must pay the salary of the third party contractors. This can be upwards of $700 per day, which can be more than a captain of a small business fishing boat can make.
Speaker 3:You know, i'm not quite sure how the high and mighty came to this, but all of a sudden I have to pay $700 a day And I can't if I'm a small fisherman, i can't pull it off. It's not worth it. And so you put me out of business. and you know, i know Rhode Island fishermen have been raising a somewhat similar issue. I guess they have some electronic requirements that are expensive too. don't understand that quite as thoroughly as I do the New Jersey fishermen, but it's kind of a common sense.
Speaker 3:regulation issue that's coming up is, you know, has the federal or other regulatory systems that they become so burdensome that it's kind of backfiring that you know that we're. I mean, if you want to not overfish, i suppose one thing to do is to put fishermen out of business by regulating them. I guess that's a solution. But you know, it seems like a battle far, far away. But the fact is they are asking the Supreme Court to do something ball-faced. The petition of the Supreme Court is overrule Chevron. Now the EPA case makes a major dent in Chevron. It basically says major social policy. you know, we're going to take a breath and look at the statute to see if it really gives you the authority. But you know it doesn't completely change the dynamics of the federal regulatory state. It picks and chooses.
Speaker 3:Now I will say a lot of us who do Title IX believe that a very slightly worded statute may or may not support the kind of regulatory structure that's been created under it. It's hard to distinguish EPA from the Title IX regulations. Maybe the court would. I don't think so, but they might. But this particular trip to the Supreme Court is ground shaking It's. it knocks back time, potentially pre-1984.
Speaker 3:And, eric, there are so many indications to me that this court will be inclined to either eviscerate Chevron or overrule it. I don't know whether they want to kill it with a thousand paper cuts or just tear the whole structure down, but I think the field should brace for the distinct possibility of significant limitation of federal regulatory power. And this could have immediate impact in Title IX. Not so sure with disability law. I think that's a different beast because Congress has made much more specific intentions and the statutes are more complicated. So I wouldn't be surprised that they might leave disability or federal disability law relatively unscathed. But Title IX, which in particular has been so controversial, no one's happy with it right now. Department of Ed said it's going to put off regulations until October And my friends who are victims advocates are just absolutely.
Speaker 1:Yeah, and the longer they delay, the more difficult it becomes to make changes at the institutional level.
Speaker 3:Well, now you know what you're looking at with the Biden administration. If they bring the regs in October, you know there's no way they're effective any earlier than January, more likely May or August. And then there's a federal election in the fall of 2024.
Speaker 1:Yes, where it seems to be where the confusion is coming from, or the concern, and that is that every compliance issue that comes from a regulatory agency will it now always, or most likely, go to the Supreme Court. And there's this criss-crossing of the executive branch and the judicial branch and therefore for the folks that work on campuses at the institutions, that look to these regulatory agencies for guidelines, such as the Tier College letter of the Obama administration for Title IX, that these Tier College letters will be few and far between And if they are released, will they then go up to the Supreme Court for modification because of a political election?
Speaker 3:Well, i think you know it starts with a basic thought that higher education is major politics now And many of the regulatory structures that we're debating are high politics now. I didn't immediately see this in 2008, but we're front-page notice on things that are daily operation for us How are our emissions operates? Supreme Court case, title IX, supreme Court case. I mean it's really remarkable to have that much level of high federal attention And you know I've told people here's what I think's building for 2024. And I see it now more clearly with the regs coming out in October because, let's be honest, it's going to be Halloween on October 1st most likely. So we're now functionally almost at the end of 2023.
Speaker 3:New regs come out, department moves to enforce particularly the more controversial features of the new regs, which would be transgender rights and reproductive freedoms, because that's going to take, that's going to put blue red state attitudes completely in contraposition.
Speaker 3:The Supreme Court takes an emergency or one of the circuits takes an emergency case, strikes down all federal regulation or huge parts of it, and Biden enters the election in 2024, postured around the idea that an obstructionist, conservative Supreme Court is taking away your privacy rights or reproductive freedoms, this anti-trans, anti-lgbtq, and the Republicans push back and say exactly what you'd expect supporting what the Supreme Court has done, supporting this, etc. And what's happened now is we are more likely than not going to be pawns in political battle. And I'm going to give the advice I gave to, i would have given to people who lived in farmhouses at Gettysburg Get out if you can knock the doors. pitched battle is about to happen in your backyard And the forces are far too great for a little higher education to do anything more than just influence it a little bit. I see a guy on a Titanic with a cup trying to pour water out and it might slow it down a second or two, but that ship is definitely headed towards a collision.
Speaker 1:Yeah, everything twisted and complex. You just don't know what to do anymore. You don't know what to say. You don't know how you can approach anyone.
Speaker 3:You're in a swirl that's bigger than what you can possibly control. And I see very clearly where things are going, because when we've talked about the consumerism of higher ed and you see this with the Bud Light controversy that's out, there is that people are now lining up consumer choices around affinities. In other words, i want this kind of beer, i want this kind of college, i want this, and what you're seeing is America is quickly trying to figure out how to sort into an economy that offers affinity product associations that work for groups of people that can sustain them, for colleges. This is particularly difficult problem from a business point of view. We probably made the mistake of letting people sell us as the marketplace of ideas, which mean we're everything to everybody. And we live in a world now where we're past Burger King. It isn't just have it your way, it's have it my way. But can you imagine walking into Burger King and you order a burger and you say but if this person orders a Whopper, i'm leaving Because I want it my way. I don't want it their way at all, i don't even want it on the menu, and that's where we're heading. And colleges, businesses are really, really have a problem with that.
Speaker 3:I actually think the sector that's probably got the best chance right now private institutions that have a specific religious mission. You know that this kind of a market actually works for them, assuming that there's a market for that particular religion, which they presumably is, because they've been around for a long time. A few of them are are bellying up, but a lot of them are not. The beauty of being a private religious college now is that you're exempt from some of the more onerous or regulations, particularly some of the anti-discrimination laws that are most controversial. I'm actually seeing some schools become more religious mission driven and i think one of the motivations is Take advantage of the business realities of my own reality.
Speaker 3:I am definitely seeing a little micro trend in the other side of the fence of you got people like grand canyon, which has a very successful business model, and You know they figured something out. They basically created a huge activity zone. I mean, i hate to say it, but it's basically l a fitness on steroids. You come to the campus to work out and have activities. You know, play games, compete and then you go get most of your classes online. You know that cuts the The controversy down dramatically. You know a lot of the compliance issues deal with. Do i have a pond? do i have a residence hall of a parking lot? diminish some of this stuff and make it more activity driven. There's less likely you're gonna have protests and so that kind of product sell is. It's a little safer space in a world where the consumers want to divide their affinities. It's not entirely free of that, but it's. It definitely has viability. But i see nothing but challenges for public, some private nonsectarian over the next few years.
Speaker 1:What about the community colleges in particular? no, the ones that don't have residence halls? We used to refer to them, when i worked on at a community college, as The academic mall. You know the students would come, we would. They take classes in between classes. We feed them. They certainly had places to park their activities. Then they would Take more classes or simply go home. So it was an in and out type of environment. Your thoughts on that?
Speaker 3:The very interesting creatures and i've always thought of community college like coral reef. They're beautiful, lot of people want to visit. You don't tend to linger as long as you do other parks And they're incredibly sensitive. Small changes in temperature and this is something we've seen is that there's been some real d enrollment issues as the number of people interested in higher ed seems to diminish. They seem to take it on the chin first. So it's almost like a coral reef. They They're beautiful places but very sensitive to right Even small changes and significant changes in higher education dynamics.
Speaker 3:And i got my eye abroad, eric. I think one thing america is going to have to contend with is that in the past when we sent young people abroad, it was usually To attack enemy forces. You know the large number of americans that were sent to other places in the early age usually went to fight wars. It had a dramatic impact in american culture, particularly world war two, but really one did as well. I'm sensing that what may start happening is the cost and controversy of higher it goes up.
Speaker 3:I think more people are going to be thinking maybe i need to take some credits or a degree outside the United States. You know why not start a law school In a cousin now teach all the basic stuff much less expensive. And then you convince the ABA that all you have to do to qualify to sit for a state bar exam is take a couple of finishing classes in the United States. You know, this is just a harbinger what's coming. We're on the cusp of technological revolution that's going to change higher learning in a way that would be unrecognizable. I'm, you know, kind of going from the records of the nineteen fifties, the digital music today just different world.
Speaker 1:You know we talked about in the past and little bit today about the legal profession in higher education and in your world as a law professor. So what are you seeing In regards to the type of student that is coming through law school now, their ambitions and how it really compares to when you were a law student?
Speaker 3:It seems like every couple of years i see new signature changes, and occasionally generational ones become very apparent. One thing i am noticing is that more students and ever want a livable, sustainable lifestyle in the law and they find that some of the traditional pathways Are not offering the kind of life work balance that they want to have, and i think they're vaguely hopeful that Technology and other things will shift. But what they're looking at is a very interesting world where i think a lot of work will devolve to a state level, not federal. I think that's been true for title nine. I think you're going to be looking at national practice so that the idea of being a lawyer in a given state will start to diminish. More likely people will start getting certified for particular skills, like a parents in court in Kentucky or wherever they happen to be. And i think one thing that's drawing people to law right now is the thing from Britain. I think who sits in the White House is getting less important than ever.
Speaker 3:I think two things are very noticeable in American politics is a shift almost towards European parliamentarianism multiple parties. We're sticking to that two-party thing, but if you really look at Congress, it's four parties and the Supreme Court is tearing the guts out of other branches of government's ability to make final decisions. We live in this hyperactive Marbury and Madison moment where the Supreme Court is taking on authority. That is really remarkable vis-à-vis the other branches. Of course they're able to do it because there is such political division in the country and they have a court that's very consistently themed now, with a majority of justices and a lot of key issues. Harvard just did a law review on the imperial Supreme Court using that term, which I thought was interesting.
Speaker 3:I think some people are drawn to the idea that joining the caste of Brahmins, who are lawyers, is the pathway of power and control in American society. This is where higher education in my field of law intersect, because I've got a little book in my mind the spirit of the law. One of the key themes is that the spirit of the law is not predominantly housed with lawyers or even a Supreme Court. Lawyers in the Supreme Court do not own the law. They have a very powerful role in it, but it belongs to everyone.
Speaker 3:I see it in little things, eric, like people who have very little legal education are wearing t-shirts now that have very specific legal statements on them and their instinct is to connect their search for whatever they're searching to root legal documents. I don't remember maybe you do but in the 60s and 70s did you see a lot of people wearing shirts with legal statements on them? This is the level of detail it's getting down to. It's affecting colleges because, again, if you try to be the marketplace of ideas for everything to everybody, ellis Island, and bring anybody that marketing plan, that's tricky.
Speaker 1:What about, in the same breath, recruitment and retention of employees and faculty?
Speaker 3:There's no question that politics are driving employment decisions. I've seen it firsthand where people just say I'm not playing there, don't like the feel of that, i don't like this governor, i don't like that states politics and I'm talking red, blue, purple across every day. It's not one dimension to that. I do think that one thing that's on the mind of almost every faculty person is is how Fall Holland is this career? Did I enter a career where the end of this is I get to die in a blaze of glory, where my career explodes and I'm done? It's this viking stuff. Of course, that was never the thinking. The thinking was that the older and more whizzing you got, the more security were, but it's exactly the opposite.
Speaker 3:The metric has just flipped and here's what's coming.
Speaker 3:That administrators and most faculties are not fully prepared for yet is that we're looking at the death of tenure and traditional faculty pathways and we're going to see the rise of influencers, people who will insinuate themselves into academic institutions to gain influence and it won't matter to them whether they have a long-term contract or tenure, because they'll use the influence and the martyrdom or the controversy to leverage themselves up to a lucrative, more durable career.
Speaker 3:I hate to say it, but I think in many ways, taylor Swift is the model for the next generation of, and some of her stuff is pretty good. She's a tremendous marketer, but what she's doing in terms of creating this influence marketing megalon, that's the future. I think boards and administrators have no idea what they're in for. If you start replacing faculty with influencers, they're coming right for your throat. These aren't people that are looking for shared governance or collegiality. They're looking for platforming and money, and they'll find it. I don't think we have the first Elvis Presley yet. We're going to somebody out there that's going to just Jeff Bezos this thing to the moon by coming into higher ed and making the platform from there.
Speaker 1:It sounds like what you're saying is the influencers will start to infiltrate the leadership positions and will be developing the brands for you, leaving you very little choice.
Speaker 3:Well, many brands are born in controversy and in contradistinction. Nobody's quite done this yet, but I'm kind of waiting for the whatever. The opposite of what people think Bud Light is that don't like it to come out beer. Somebody's gonna do that. You know they're gonna think I just marketed for this. But even look at Zelensky in Ukraine.
Speaker 2:The guy's a media star.
Speaker 3:He's a huge influencer and a small country has just brought the Russian army to its knees. I mean, and everybody sees it, they're like holy mackerel, you know, you can be a comedian in the Ukraine, become the president and defeat a superpower with. You know, with a smaller army and less weaponized people, i mean this is gonna draw people to the field. They're gonna think that's the way to do it.
Speaker 1:You know, when we were growing up, remember they thought President Kennedy was just another politician making false promises that we'd have a man on the moon before the decade was done. And he was right, which is why another Peter Lake prediction about influencers leading higher education shouldn't be ignored.
Speaker 3:Well, what I really see is we're in a once in a thousand year reformation And therefore there isn't anybody that has the faintest idea what to do with this, because it's been so long since there's been anything like this And there's something about the intersection of law and education that's really captured the American imagination And you know it's to. Tocqueville caught it early with the American psyche that there's, you know, this fascination with law. But the you know, one thing that really distinguishes the American experience is the very first European settlers immediately established higher education here, and there's no colonization effort in history that was so oriented around education and faith and law. I mean, that's what I think is so fascinating, and I see Americans really struggling for those rude energies And they seem to have lost their way a little bit. And yeah, i just, i don't know, for some reason the Fisherman case has me in a Bruce Springsteen mode, but I'm feeling like I'm sitting down at the Stone Pony and listening to Allentown and thinking, you know, but it's still there. You know, the American spirit to learn and to grow and to behave responsibly is there And I think, you know, one of the things I would try to appeal to all Americans is be smarter and be more law-like, life is better.
Speaker 3:You know, don't be stupid and don't cheat. You know it's because you're only cheat yourself, and I think sometimes the law baits people into thinking get what I can get. When I can get it, take advantage, fight the other. It's. You know, there's a time to fight the Klesiastes, but there's a time not to, and I just think that what did Dean Wormer say? you know, drunk and stupid is no way to go through life, and he was an evil guy, but nobody's all wrong. So you know, there's messages in here that I think are really fundamental. Everything is a learning experience, and I learned so much about governments and searches, and you know who I am, and I get the feeling that doing this is a big part of who I am going forward. So I appreciate you having faith in me, eric, and I'll look forward to talking to you soon.
Speaker 1:You got it, my friend, and I'll look forward to our next discussion.
Speaker 3:Okay, take care, bye-bye. ["Turkish Rhapsody"].
Speaker 2:Higher education. Renaissance is produced by Eric Seabort, grace Mosby, gina Profetto. Technical production by MC1R Studios. Artwork by Gin G Productions. We welcome your comments or program recommendations for future episodes at ericseaborg at gmailcom, and thank you for listening.
Speaker 3:It's been quite a ride.
