Authors contend that context matters when it comes to matters of the law.
Interview by Tina Tormey
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here are few cut-and-dried answers when considering how the practices of campus housing and student affairs mesh with higher education law. A new book explains that, no matter how much professionals want crystal clear answers, they may have to resign themselves to the reality that “It depends.”
Anyone who pursued master's degrees in student personnel programs are probably quite familiar with the classic text The Law of Higher Education by William Kaplin and Barbara Lee, which has served as a primer on higher education law for years. Since that book was first introduced, campus housing and student affairs continue to experience changes in the law impacting how they practice. Many campus professionals who work in housing put a lot of pressure on themselves when it comes to liability, ethics, and legal issues.
In Law and Ethics in Academic and Student Affairs, by Michelle Boettcher and Cristóbal Salinas, Jr., the authors employ a new framework for using campus contexts in the assessment of issues that involve ethical decision-making and legal considerations. While its approach may challenge those who love definitive answers, and there are a lot of them, the book provides a viable approach to taking in all of the information related to a complex situation and using it to develop thoughtful, informed plans that integrate consideration of campus dynamics, student identity and intersectionality, and how staff can better understand their campus landscape and the rationale for their decisions.
Will this book serve as a panacea for all legal issues? The authors probably would say, “Well, it depends.” Talking Stick interviewed Boettcher, associate professor at Clemson University School of Education, to learn more.
The following interview was edited for clarity and length.
What inspired you to write a textbook on higher education law?
My background is in student affairs. I worked in housing as a residence hall director and then as a hearing officer. And then, right before I became a faculty member, I was an assistant dean and director of student conduct. The law, ethics, and policy part of our world has always been part of my work, and when I shifted over to my faculty role, I think one of the reasons I was hired was that I wanted to teach law and ethics and not everybody wants to teach that topic.
I tried some different books in my program. My law course was taught by an attorney, and we used the Kaplin and Lee text. It was one book at the time (it's now two and growing every day), and I loved it because I love case law. I like looking at the intricacies and understanding how laws apply and how we make meaning of them. But the reality is that I didn't ever really use case law in my practice, and so I looked for someone else to write this book. I thought, “It's out there somewhere or close enough to being out there,” and I just couldn't find it, so I thought, “Okay, I guess I'll try to write it.”
I had partnered with Cris Salinas, my co-author, before in editing a book, but this was the first time I had tried writing one. And I wanted a book that wasn't just about specific cases. Although there is case law in the text, it is more about how we think about and make good decisions because, again, we're not going to be drawing from case law very often. But we draw from precedent, we draw from institutional culture, and we draw from our own experiences and those of others around us. So that was really the motivation to write the book: to put something in practitioners’ hands. And I love your comment about definitive answers. I believe all the students I've ever had would be much more comfortable if there was a checklist that said something like “If A, then B,” but it's just not the way it works. That's why there is this theme of “it depends” throughout the book because it depends on where you are working, your position, the relationship with your supervisor, and what students are involved. And there are different questions and challenges; it's not always a challenge but may involve pieces of information that inform our context. That's really where the idea came from.
And then the book proposal you submit and the book you end up writing are never quite the same. But I'm really happy with this book. I've used it in my teaching so far, and I think it makes sense to students. They can put it into action in ways that they couldn’t with something that was focused on case law or legislation. It's harder to apply that directly to the work. So that was the motivation behind it, and I'm excited now to have the book I was looking for – and if I don't like it, I don't have anyone to blame except myself.
In this book you used an institutional intelligence model. For those of us who are not familiar with that, can you tell us a little bit about what it is?
Absolutely. Cris and I met at least weekly while we were working on this, and the institutional intelligence model came out of our conversation. It's really pretty simple. We define institutional intelligence as knowing enough about where you work to make the right decisions, and that sits in the middle of the model. Then, if you think of it as cogs, there's a cog on one side that is law, ethics, and policy and on the other side are questions that we can ask ahead of time, in the moment if the moment provides time for questions, or afterward as a point of reflection. The questions are ones we all know: who, what, where, when, why, and how.
I'll just quickly talk about the “who” question as an example. Who are the people involved? Let's say there's a flood in a residence hall, which I know never ever happens, but let's pretend that it did. Who's affected? Who needs to know? Who's on site? Who is the person responsible for it? Is it a facilities issue, or is it a vandalism issue? Going through all those questions helps us respond as well as we can. Also, are there students who are displaced? Who are they?
We also need to ask “what” questions: What accommodations can we provide them? What resources might they need? That was a little bit of a tangent, but I teach students in our program (primarily in their second year), and they're using this same model to look at what the law and ethics and policy side is and then looking to see what our policy says. What are the expectations in a crisis? What's the crisis protocol? And all of that is informed by things that have happened in the past.
I have this idea that every campus has at least one weird policy, and it's almost always because this weird thing happened and then we made a policy about it. We need to know what those things are, but none of us can know everything because we're in constant change, in flux. But if we have questions, if we think there might be gaps (going back to who we turn to, who our partners are in responding to a situation), it's not complicated. It's really law, ethics, and policy and the history around those things combined with good questions that help us understand our institutions a little bit better.
Again, change is always a part of it, so if your supervisor changes, if you go to another institution, if you get a new vice president of student affairs, you have to revisit some questions.
That model came through our conversations. We didn't walk into the book project with that, but it evolved as we were talking about how we provide a framework or a tool that people can put into action.
You mentioned that the book you wrote was a little bit different than the one you proposed. What would you say were the core differences? And what surprised you about this?
I've written a lot of case studies, and I write with students as often as I can and partner with them on case studies. So I knew that would be a part of it. But one of the things we really wanted as we were building it was to create these critical scenarios throughout the text. We needed to tap into experts for that, and I don't know that I thought about this as much ahead of time. But I haven't worked in every functional area, and that's why I wanted Cris as a partner on this. He has more academic experiences working in multicultural areas, which are positions I haven't held. As we were developing these scenarios, we decided we needed to bring in practitioner partners. I'll use the financial aid section as an example. I had taken the lead on drafting our critical scenario for that, and, as with most first drafts, I was thinking, “Oh, this is pretty good. It probably needs to be tweaked, but it’s good.” Well, Amy Burke, who's at Clemson and who was our practitioner expert, noted that the way we were using this language was actually very different from the way practitioners do. We literally would have gotten it wrong if we hadn't turned to practitioner experts.
To make sure that we were on the right page, we tried to bring in partners not only from different functional areas but also from different institutional types. We also brought in people who held different identities because again these are all aspects of the who, what, where, why, when, and how. You can't answer every question in a book, but if you present different perspectives in each section you can touch on most of the areas that we need to be cognizant of as we do the work.
I did want the title to be “It depends,” but the publisher said, “Maybe choose something that would make it a little clearer to potential buyers what it's about.” But as you can see, “It depends” comes up a lot in the book because that’s what I teach in law and ethics. I tell them at the beginning that the answer to every legal and ethical question is “It depends,” and I firmly believe that. And with this book, we tried to help people discern what it depends on.
You spoke earlier about the book obviously being a text for grad students in a higher education program. However, towards the end there is a section that talks about how these are also important context questions to ask when you're onboarding new professionals and thinking through the life cycle of your staff and preparing them for their roles. I think there's certainly a broad ability to apply this to different scenarios.
One of the differences in the way that you approach this text is that you also considered what happens after the incident. The decisions we make are not neatly wrapped packages. It's the work we do afterwards to document, to reflect on, and to adapt that counts. Could you talk about that? It's a short section at the end, but it's an important one. Can you talk through the significance of debriefing and documentation after a situation has ended?
I appreciate you bringing that up. We wanted to make sure that academic affairs was part of the title as well because this is about student-facing professionals. As far as the reflection piece, we imagined this to be a book that can be used to prepare for and thus anticipate issues that might come up in a crisis and then after. I was in housing long enough that I can't think of a major crisis I was in where I thought, “Wait, let me grab this book,” even if it was a manual for my area. You are in the situation, and you're doing the work, and for some of the crises this takes significant time.
One of the things I loved about being a practitioner was that I didn't know what my job would be until I got to work and saw what was in my email, noticed which students came into the office, or anticipated what phone calls I was going to receive. But the reality is that when you're in the moment – first and foremost, if it involves students – that's where the attention is going to go. And while there isn't always a ton of time for reflection, I think we do ourselves and our work a disservice if we don't build in some reflection – and by that I don't mean a supervisor going to a team member and saying “Next time, make sure you do this, this, and this.” That can be helpful depending on how it's phrased, but what’s really necessary is to reflect on “who.” Who was served best? Were there people we missed in the process? Were there people we missed communicating with? What are the expectations? Were there implications in the media?
Reflection doesn't have to take a lot of time, and the reality is that you may be literally moving from one crisis to the next because the world doesn't plan crises in a spread-out manner a lot of times. But there are opportunities, and maybe it's not right after an event. Maybe it's an end-of-the-year reflection. But we should always take the opportunity when we respond to a situation to figure out what worked well and what we could do better the next time around. Doing better could involve the response in the moment or the training or bringing in different partners when certain situations arise. But, again, we hope that the book can be useful at multiple points – not just in the classroom, which is where I'm primarily using it, but also in onboarding and staff development, strategic planning, and reviewing event protocols or handbooks. All of those are places where this model makes sense, and there are questions and scenarios in the book that can apply.
It also sets a good framework for when you have to develop policy.
Great point.
In the foreword written by John Lowery, he states, “the law may tell us what we must or even what we could do; it does not tell us what we should do.” I think a lot of us expect that legal precedent will serve as a more definitive compass when we navigate a situation, but it doesn't. And you talk about how you have sometimes seen this in your career and how it has played out.
Absolutely, I have an example that I use a lot in my teaching and engagement. In my last position as a hall director, I was in a new building as we opened it: a four-story hall featuring suite-style accommodations with a shared bathroom and housing several learning communities and ADA rooms throughout. Half of the first floor was occupied by the front desk office and classroom space, and the other half contained residential space. One of the learning communities was an honors community, which was on the first floor. That was challenging because both the first and second year that I was in the building, there were two students who lived on the first floor and used wheelchairs but were not honors students. We planned a day of training to share the evacuation plan, so we conducted some training sessions with students, staff, and the fire department. Ultimately, what students needed to do was wait in the stairwell for a firefighter to respond. That was really hard for the staff, myself included, because even though we had a plan to assist students if there was an emergency, they would be dependent on us rather than having the autonomy to evacuate on their own. That feeling stuck with us, but we worked over the course of that first year to communicate and practice the evacuation plan.
As we continued to review the plan, we proposed moving the honors community to the second, third, or fourth floor. That way, any student with a mobility issue or another need to be on the first floor would have that option. However, the honors community liked their community, and they didn't want to move; they saw themselves as the builders of the community and were very engaged and passionate about it. Ultimately, it all worked out because we ended up expanding the honors community, which moved to another floor where it occupied the entire space rather than half of one floor.
What was interesting in this instance was that one of the two students using wheelchairs then chose to live on the first floor once that became an option. The other did not. He lived on either the third or fourth floor and said he was okay with that; he knew the system and how it works, and this was his community: “I know these residents, and I want to stay here.” So, for me, when I talk about compliance, that's the lowest bar possible. That is the bare minimum that we have to do. Our building was compliant. It was fine. Legally, it was fine. But we knew we could do better, and we did. We did right by this. It was possible that neither of these two students would have moved down, but at least they had the option – and future students would also have that option.
We face these situations all the time: The guideline is basic but needs some clarification to fit. Any policy is going to look a little bit different from one campus to the next, but I would say that, in housing, how that policy plays out in a suite-style building is going to look different than how it plays out in a traditional high-rise or an apartment community. At some point in your career, you have to make a decision between privileging consistency or fairness. Consistency is easy, right? You did this, here's your outcome. That is not what I aspire to. I aspire to fairness. I aspire to more of an equity mindset where we consider the human beings involved rather than forcing them into conforming to the policy.
I connected to what you wrote in the “Student Living and Well-Being” chapter. “Anytime we have people in community, ethical issues emerge.” How do we prioritize different and sometimes competing needs between communities and individuals? This is something that we constantly talk about as we try to navigate a cultural shift pitting individualism against community. We saw that a lot during the pandemic, and we see that as states pass legislation compromising diversity, equity, and inclusion (DEI) initiatives. We see that as we witness public reaction to student organizations sponsoring teachings and events related to Israeli-Palestinian conflicts. So how do you envision this textbook contributing to the field, especially when we think about that context, and what impact do you hope it will have on readers?
Ultimately, the book, like any other book, is a tool, right? How do we use it? While there are critical scenarios in the book to reference, everybody has their own situations that they can draw from. Issues of free speech are especially interesting because there are always more than two sides involved, and they're both going to say, “I want my free speech protected.” What we forget is that it's not free speech for some; it has to be free speech for all.
And higher education is in a tough position right now. There are external people, and maybe even some in higher education, who are questioning the point of attaining a degree. Well, when I think about what higher education is, I realize it's a little bit of job training, it’s credentialing, and all those things. But the most important thing you get from higher education that you don't get in other contexts is those conversations that happen between 10 p.m. and 3 a.m. I think so many of us have been in those moments when we want to say, “Wow, so tell me more about what you're saying.” And housing is specifically situated to foster those conversations. I remember those “a-ha!” moments that maybe didn't change my mind on an issue then and there but did challenge me to think more deeply and in a more complex way about the issues. So, as far as the book goes, I feel that it is something that can open that door.
Some of the issues you mentioned weren't on the landscape when we wrote the book, and that's the thing: It is always changing. If it’s institutional conflict or institutional intelligence about conflict in other parts of the world, we need to be able to ask questions and figure it out. At a bare minimum, we need to foster civility and the free exchange of ideas and opportunities to create a chance for learning and growth.
Because of our partnership, we started every chapter with a quotation from someone who has expertise on the topic for that functional area or the topic covered by the chapter. Those are more big picture observations, but I hope people see those and start to engage their critical thinking and consider their own views. For example, at the beginning of one chapter, there is a quotation from Chuck Knepfle, vice president for enrollment management at Portland State University, talking about enrollment management. We want to get readers thinking. What are my beliefs about college access? What is my big picture? What is my philosophy around free speech, civility, or community responsibility? Neither Cris nor I are instructors who say, “Welcome to my class; let me tell you what to think.” It's more, “Welcome to the class. Let's figure out things to consider and think about, and it's always gonna change.”
At some point, probably much sooner than I would like, the language in the book will probably be outdated. We felt that way when we were on our final read through the edits. We were wrapping things up, and the day we were doing that was the day the decision was made about affirmative action and admissions. We decided to add some things around that issue at the last minute, and that illustrates the nature of this work. It is constantly changing. And higher education, now more than at any point in my career, literally can change from one day to the next. Or the way you do something in the morning may not be the way you do something in the afternoon.
The legal landscape is continuing to change. I had a case a few weeks ago where general counsel gave me guidance on something, and then they stopped and said, “Wait, let's just check something.” They found a case that had gone before the Supreme Court, which changed the recommendation that we were going to have for responding to a situation in a particular way. If even general counsel can be on their toes at all times with the shifts, this text empowers practitioners to recognize that they don't need to know everything. They don't need to have all the answers, but figuring it out and being able to have a rationale for decisions is really what they need to think through when they’re navigating these situations.
Right, great. I mean, you can't. I always tell people, “Never say, ‘I've seen it all,’” because you are setting yourself up for something to happen in the next 10 days when you think, “How did someone decide that they were going to do this thing?” We can't fully anticipate everything. And I love your comment about legal counsel because I remember a conversation with our legal counsel when I was at Iowa State, and they said two things to me that I still think about now. One is if you do this work long enough, you're probably going to end up in court. We are a very litigious society. It's just a reality. The other thing to keep in mind is that when this happens, do you want to go to court and defend not taking any action, or do you want to defend having tried to do something to address the situation? I think about that a lot and feel much more grounded being a faculty member because it's tough to be a conduct person right now. And it doesn't matter if you are in a university office of conduct, if you're upholding academic integrity, or if you're hearing cases in residence halls. Things can take on a life of their own much more quickly than ever before, and people are not hesitant to act.
Let me put it this way. Back in my day as a hearing officer, the thing to say was, “Well, I have a cousin who's in law school,” or “My aunt is an attorney.” Today, it's like they skip that step. You don't know if you're being recorded, you don't know what other things they might be pulling in, and you don't know who else might be involved in a conversation that you think is really just a dialogue about how we address this. It's a very different world to function in in terms of accountability, community, support, guidance, education, and all of those things around behavior. It's different, and it's continuing to change. I'm not offering this to imply that things are negative because I think our students are coming in with more curiosity and more exposure to different people than ever before. So, while there are some challenges, there are also so many gifts that walk in every day. I loved working in housing, especially with first-year students. The students who walk in the door in the fall when classes start are not the same people who move out in the spring, and that's what this growth is about. That's what the learning is about, but how we engage in that learning looks a lot different now than it did even five years ago. It's not the same landscape that it was when I was doing the practice part of the work.
You mentioned the scenarios, and I thought it was interesting that the critical ones were not necessarily those that you would immediately expect to become a legal situation. In the critical scenario for housing, it was an escalating roommate conflict. I thought that was important because some of the day-to-day work that we do can benefit from the model. We deal with roommate conflict all the time, and the book sets a framework for being able to think that through: Why or how could this escalate further? What do I need to consider in order to have a healthy resolution to this now? Some of those day-to-day cases can feel very routine and, for that reason, may prevent us from questioning and thinking through all the who, what, where, when, why, and how situations.
Yeah, and I love that you brought that up because one of the things that I know from my own career is this: The law touches on what we do, but ethics involves everything we do and how we approach things. Roommate conflicts are a great example. I can't think of a roommate conflict where I didn't probably side with one person more than the other. My goal was for them not to know that, but ethically I have to be aware if I'm feeling that so I can give fair consideration to both sides. I'm glad you brought that up because I think these agreements can start as such minor things, like not taking out the trash or not doing the dishes. And in my experience, it’s never about the trash or the dishes. It's always something else, and building the rapport and trust that can get at the real issue at the heart of this takes time.
We have covered a lot of ground here for how campus housing professionals can use the book. In closing, what additional thoughts do you have?
I think the only thing to add is that while the chapters are set up by functional area, you could apply most of the critical scenarios to your own area. We wanted to include academic affairs because when a student comes in the door, we never know what they might share with us, and the best practice is to be in community with other practitioners. A student might come to me first, but I might not be the person who can best help them toward resolution. That doesn't mean I'm trying to hand them off. I want to give them to the person with access to the resources or the experience working with the issue that concerns them. Once a housing person, always a housing person. We do all the functional areas. Housing professionals do everything in that book, so any of those scenarios could be relevant across functional areas.
Tina Tormey is the director of residential education and housing and is an adjunct instructor at The College of New Jersey in Ewing. She is also a member of the Talking Stick Advisory Panel.
