Legal Issues for Planning and Implementation

It’s critical to interact with your university’s legal counsel early on, as an integral part of the team for both planning and implementation. Rather than involving legal counsel only at the beginning and end of a DEI Strategic Plan and Implementation, arrange ways they can engage with key individuals, teams, and leaders throughout the entire process. 

It’s also important to encourage those involved in DEI efforts to view legal advisers as valued partners and collaborators rather than obstacles. Once they have a clear understanding of your goals and objectives, your legal counselors can help set parameters, provide valuable feedback and guidance, and help the DEI planning team pursue ideas and programs that are within legal boundaries.

They can also help you think through prospective questions and future challenges from various constituencies, including students, staff and faculty as well as alums, supporters, critics, and other external parties. By not seeking legal counsel on an ongoing basis, DEI planning teams run the risk of overestimating constraints and doing less than they could or, conversely, moving ahead with plans that exceed legal limitations.

The key objective is to create a DEI strategic plan and implementation process that meets all legal guidelines under state and federal law. The way to achieve this is by creating a partnership between legal counsel and those who are developing, leading and enacting plans.

By providing guidance in a collaborative and ongoing way, legal counsel can evaluate risk and ensure that the final implementation strategies will not only be effective but also legally compliant.

Because institutions are often highly decentralized, it is crucial that legal counsel be involved at the school, college and unit level as well as centrally.  The university legal team should provide advice and guidance through multiple channels and venues—conferring with university leadership, working closely with the Office of DEI, engaging with individual departments and units campuswide, meeting with deans, and communicating on a regular basis with DEI Leads.

As a general rule, primary collaborators should include members of the DEI planning team and the institution’s Office of Legal Counsel. Ultimately, this partnership will lead to ongoing contact between legal representatives and other collaborators in the DEI planning and implementation process—including deans, DEI unit leads, faculty and staff.

Planning

As a first step, find out how your legal counsel office is organized, determine how DEI-related work is handled, and discuss how the additional work generated by a DEI strategic planning and implementation process will be handled. This preliminary groundwork is important for all institutions, especially if legal support is particularly limited.

Implementation

Also, it’s imperative for legal counsel to evaluate new initiatives and new issues that arise not only during the planning phase, but as plans are being implemented. In addition, planners should expect that other DEI-related topics—such as changing a financial aid plan related to diversity—will crop up year round, on a continual basis.

Reminders and clarifications about legal parameters should be provided regularly to the DEI Leads across campus, with opportunities for Q&A. Attendance at key meetings with central planners and participation on the central advisory group that advised on strategic plan implementation will help ensure that legal issues and questions can be identified and addressed regularly. In this way, DEI efforts across campus can be approached and implemented within legal parameters.

The best indicator of an effective relationship with legal counsel, and effective legal guidance, is a campus that moves its DEI plan forward steadily and successfully, without significant backtracking due to legal issues. Planners who seek out legal expertise, as well as legal counselors providing consultation, may want to ask some key questions.

Among them: Is the advice being presented in a way that’s helpful and clear? Did the guidance achieve its aim? Is your DEI plan being driven by strategies that are significant, effective and in full legal compliance?

The overall intent of legal support in a DEI Strategic Plan and Implementation is to proactively guide decisions and plans to help achieve desired goals within existing legal parameters. If an aspect of your DEI work leads to a legal challenge, it isn’t necessarily a sign of poor legal guidance but could simply indicate an area of law that needs further clarification.

  • One of the biggest challenges is fostering consistent, ongoing consultations with legal counsel at the early planning stages of every initiative. From the outset, make a point of encouraging team members to develop the habit of conferring with and calling on legal counsel as a matter of course.

  • Assume little or no knowledge of legal counsel on the part of DEI Leads and other planning team members. Although senior administrators are familiar with the legal counsel process and know when to call on the expertise of the Office of General Counsel, many staff and faculty members do not understand the role of legal counsel and may not even realize that it’s available. 

  • Build in mechanisms for those who join the DEI effort as it continues (due to staff turnover, new faculty, etc.) to learn about the availability of and importance of legal counsel at early-stage development of programs or efforts and when changes or new elements are proposed.

  • Decisions relating to risk are relevant to the legal context of both the campus and the state. Overall, levels of risk tolerance will vary among colleges and universities, based on a variety of factors, and decisions about which risks to accept will require engagement at the appropriate leadership levels.

  • Don’t make assumptions based on what other colleges and universities are doing. The context of your institution and legal landscape can lead to different legal guidance.



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