A public defender’s path to policy in higher education

Shifting from a career as a courtroom lawyer to one in higher education policies can be a challenging yet rewarding experience. This blog post explores the differences between law and policy and how they relate to higher education. I also discuss the differences for those working in the legal and policy fields and some tips to keep in mind for those making the transition.

Defining law and policy

First, let’s define the terms law and policy. The law is a set of rules and regulations that govern society. Policy is a set of principles that guide decision-making within an organization.

Are law and policy really so different?

One of the key differences between law and policy is the level of detail. The law is very specific and prescriptive, while policy is more general and flexible. In a criminal context, think of the law as a checklist. If defendants meet all the conditions spelled out in the law, they are “guilty.” If one or more conditions are unmet, they are “not guilty.” Laws are generally reactionary: someone at some point in history did something that society deemed terrible, and society responded by creating a law to warn future individuals against doing the same terrible thing and to punish them if they commit the act. As there is a wealth of bad behavior in the world, the number of laws that attempt to control bad behavior have steadily grown in number.

In higher education, institutions often develop policies to address specific, recurring issues or challenges facing the institution or as pre-emptive answers for anticipated questions. For example, a policy might be developed to address improper relationships between employees and students or diversity and inclusion issues either in response to, or in anticipation of their existence. Policies are drafted to be forward-thinking to prevent unintended consequences and get everyone on the same page in terms of goals, limits, and expectations.

Bark versus bite and the enforceability problem

Another difference between law and policy is the level of enforcement. Laws and policies are only as effective as they are enforced, but the goals of those enforcing the laws and policies may vary.

Laws are written by elected officials, whether at the federal, state, or local level, but are enforced by government agencies that exist solely to enforce the laws. In theory, laws are meant to be applied equally to all individuals, but in practice this is not always the case. Punishments for breaking laws are meant to be punitive and discourage future violations. Changing a law in any way, even to prevent a future miscarriage of justice, requires the full legislative process, which naturally takes a substantial period of time.

This substantially long revision process, coupled with the fact that the “law of the day” must be applied to any illegal act, can create severe consequences and equity issues. Take for example a criminal charge for possession of a small amount of recreational marijuana. Washington state voters approved Initiative 502 to legalize possession of up to one ounce of recreational marijuana on November 6, 2012, but the law didn’t go into effect until December 6, 2012. People arrested for possession of recreational marijuana prior to November 6, 2012, were clearly intended to be found guilty of Washington’s existing possession laws. But what if they’d been arrested between November 6 and December 5, 2012? Unfortunately, the “law of the day” governs, and a person arrested on December 5 would be treated as guilty under the law, even though everyone knew that the following day the law would change, and that the charged behavior would no longer be illegal. Of course, not every prosecutor would choose to pursue cases of this nature, thus creating an obvious equity issue.

On the other hand, policies are enforced by the organization that created the policy. At UNC-Chapel Hill, policies are created and enforced by the university unit—whether a college, school, department, or office. UNC-Chapel Hill policies outline consequences for violations, but are generally not meant to be punitive. Instead, policy documents are meant to increase awareness, and consequences are intended to correct behavior and prevent reoccurrence. This means that policies can be more flexible and adaptable to changing circumstances, but more difficult to enforce than laws. If a policy has unintended consequences, the university unit can immediately choose whether to enforce its policy and may amend the policy document to prevent future unintended consequences. Adjustments to existing policies can generally be done quite quickly, especially when there is a collaborative feedback process in which stakeholders can raise awareness of problems and bring potential solutions to the table for a speedy resolution.

The big transition

If you are considering a career shift from law to policies in higher education, there are several things to keep in mind. Many of the skills you have acquired practicing in the legal field will still serve you well in a career in higher education policy, but there are also additional skills you will need to develop.

1. Focus on the big picture: As a lawyer, you are used to focusing on the details of a case. While you probably have a caseload with many cases, each case operates independently from the others. However, when working on policies in higher education, it’s important to focus on the big picture. You will need to see how different policies fit together and how they impact the entire institution to prevent duplication and conflict.
2. Take your advocacy hat off: As an attorney, you view the laws in a light most favorable to your client. You cherry-pick legal rulings to support your position and try to refute any that don’t support your position. The position you hold for one client might be contrary to a position you hold for another. Policy is different. A good policy is built from a position of neutrality where the policy means the same thing to everyone; this includes the policy creator, the institution, and the intended audience, whether employees, staff, students, or faculty. The goal is for everyone to understand and follow the policy.
3. Develop your analytical skills: Working in policies in higher education requires a strong analytical skill set. You will need to be able to analyze data, identify trends, and make recommendations based on your findings. This requires a different set of skills than those you use as a lawyer, where every case is a fresh start. In higher education policy, you will conduct peer institution research and use this information to improve your institution’s policy documents. You will receive feedback from units about a policy document, and you will have to consider if and how to respond to that feedback based on your analysis.
4. Be prepared to work collaboratively: Policies in higher education are often developed collaboratively, with input from various stakeholders. You will need to work effectively with faculty, staff, students, and administrators to create policies that meet the institution's needs. Without a majority, and in some cases, unanimous support for a policy, that policy may not see the light of day. Legal settings are more adversarial even when they’re meant to be collaborative, like drug treatment courts, mental health courts, or diversion programs. In those specialty courts everyone works together until they can’t, in which case disputes are resolved the old-fashioned way with a decision made by a judge.
5. Be adaptable: Policies in higher education are constantly evolving, and you will need to be able to adapt to changing circumstances. This may require you to be flexible in your approach and willing to try new things. If a policy creates unintended consequences, policy creators and relevant stakeholders can adjust the policy. This can frequently be done quickly, especially when there’s buy-in from fellow collaborators who recognize the problems and solutions. In contrast, lawyers must follow the law, even when a law seems unjust, until the law is changed. Unfortunately, that’s not something you can readily count on.
6. Communicate effectively: Effective communication is critical when working on policies in higher education. You will need to be able to communicate complex ideas to various stakeholders, including faculty, staff, students, and administrators. This requires strong written and verbal communication skills you have undoubtedly acquired in your legal career. However, unlike the law, where you keep your cards close to your chest, policy-making in higher education is where all the cards are on the table. You can share your concerns and be candid about potential conflicts. Being transparent is a good way to earn and maintain trust in your relationships with stakeholders across the campus.
7. Be patient: Developing new policies in higher education can be a slow process. It may take time to get buy-in from stakeholders and to see the impact of your work. Be patient and persistent and remember that change takes time. Not all policy creation is slow, especially when there is widespread support, but many higher education policies are designed to follow the academic calendar to avoid changing things in the middle of the semester. This creates a speed bump in the process that you are unlikely to avoid. This differs from the law, where emergency hearings, temporary restraining orders, and arrest warrants can be done on any day the court is open, which is most of the time.

Shifting from a career as a lawyer to working in policies in higher education has shown me the similarities and differences between the fields. While there are differences between law and policy, like advocating for a client and the fast pace of courtroom life, both fields require critical thinking, problem solving, and effective communication. What could be more rewarding than that?

Articles on topics that may affect your organization’s policies

As we continue the fall semester, the Blog Committee would like to share some of the articles we’ve been reading that relate to policy administration in higher education.

• Class Notes: The gender poverty gap, COVID-19’s impact on college students, and more
  By Ember Smith and Richard V. Reeves, The Brookings Institution, Sept. 9, 2020
• A Perception Problem About Free Speech
  By Greta Anderson, Inside Higher Ed, Sept. 29, 2020
• University of California must stop all use of SAT and ACT in admissions, judge orders
  By Michael Burke, Ed Source, Sept. 1, 2020
• Accommodations in the Time of COVID
  By Nancy Gunzenhauser Popper, Talent Management and HR, Aug. 31, 2020
• UW System: Registration is now open for national public summit on preventing sexual harassment in higher education
  WisBusiness.com, Sept. 29, 2020
• 4 COVID-era Cybersecurity Threats CISOs are Confronting
  By Matt Zalaznick, University Business, Aug. 20, 2020
• California Bill Likely Conflicts with New Title IX Regulation
  By Jeremy Bauer-Wolf, Education Dive, Aug. 28, 2020