Governance After the Headline: What Higher Education Boards Need To Know
8.27.2026
Periods of legal change in higher education often arrive with dramatic punctuation: a court decision, a regulatory announcement or a legislative intervention. In the immediate aftermath, governing boards frequently focus on whether institutional policies comply with the new rule or guidance. Once those adjustments are approved, many trustees assume that the principal legal risk has passed.
That assumption is increasingly mistaken. In today’s higher education environment, the most consequential legal exposure often emerges not at the moment of decision, but in the governance phase after new policies and procedures have been implemented, The legal risk has not disappeared.
Consider, for example, the governance challenges confronting colleges and universities following the United States Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.[1] Institutions across the country appropriately reassessed admissions policies and related practices to the court’s decision. Yet the more enduring challenge extended beyond policy revision. Governing boards were now expected to exercise continuing oversight by receiving periodic reports, monitoring implementation, evaluating evolving legal developments and documenting their ongoing fiduciary engagement. In this post-decision environment, the critical question increasingly became not simply whether institutions complied with the court’s decision, but whether governing boards fulfilled their continuing oversight responsibilities after compliance efforts began.
For counsel advising boards and institutions, this second phase presents distinct challenges. Courts, regulators and enforcement authorities are less focused on the political or cultural valence of institutional decisions than on whether boards exercised appropriate oversight, fulfilled fiduciary obligations and created a defensible governance record. Effective governance depends on following clear policies as much as having them.
Instability at the top is usually structural and not personal according to Linda Oubre, President Emerita of Whittier College.
“When boards ignore or bypass their own processes, they undermine their authority and create conditions for confusion and reversal,” Oubre said.[2]
Fiduciary Duty in the Post-Decision Environment
The traditional fiduciary duties of care, loyalty and obedience remain the governing framework for board conduct, but their application has sharpened during periods of institutional stress.
Under New York law, the duty of care requires directors to discharge their duties in good faith and with the care that an ordinarily prudent person would exercise under similar circumstances.[3] This duty explicitly permits reliance on information, opinions and reports prepared by legal counsel and other professionals, provided that such reliance is reasonable and accompanied by appropriate oversight.[4]
The duty of loyalty requires trustees to act in the best interests of the institution, free from conflicts or undue influence. Where external pressures, including political, donor-driven, regulatory or reputational influences, bear on institutional decisions, boards must take particular care to document both how those pressures were evaluated and why the board concluded that its ultimate decision remained consistent with the institution’s best interests.
The duty of obedience requires adherence to law, mission and governing documents. Rapid policy shifts that bypass established governance processes or drift from institutional purpose can raise concerns under this duty, particularly for nonprofit and public institutions.
Courts evaluating fiduciary conduct often focus less on the substantive wisdom of a decision than on the reasonableness of the process by which it was reached. This principle has long been recognized under New York’s business judgment rule, which generally protects directors who act in good faith, on an informed basis and through an appropriate deliberative process.[5] Accordingly, a well-documented governance process may provide greater protection than a substantively correct decision reached through inadequate oversight, insufficient deliberation or limited board engagement.
Documentation, Delegation and the Governance Record
In modern higher education litigation, the governance record frequently determines the outcome. Board minutes that merely record approvals, without reflecting discussion, deliberation or consideration of legal and institutional risk, can be as damaging as no record at all. Conversely, thoughtful documentation of deliberation, dissent, requests for additional information and follow-up oversight can provide significant protection.
This principle is illustrated by People v. Grasso,[6] in which the New York Court of Appeals examined allegations concerning the fiduciary responsibilities of directors in approving Richard Grasso’s compensation as chairman of the New York Stock Exchange. Although the litigation arose outside the higher education context, the court’s analysis underscores a broader governance principle: Fiduciary review focuses not only on the outcome of a board’s decision, but also on the integrity of the process by which that decision was reached. The case serves as a reminder that courts evaluating fiduciary conduct closely examine the quality of board deliberations, the information available to directors, the exercise of independent judgment and whether governance procedures validate informed decision-making.
Effective governance documentation typically reflects the board’s articulation of the issues under consideration, identification of legal and operational risks, description of information reviewed, defined delegation and reporting expectations, and scheduled reassessment. Equally important, the governance record should demonstrate that trustees actively engaged with the issues before them by asking questions, requesting additional information where appropriate, considering alternative approaches and evaluating whether existing oversight mechanisms remained appropriate as circumstances evolved. Silence in the record is rarely neutral. In contested matters, it is often interpreted as working against the institution.
From Substantive Compliance to Governance Exposure
The distinction between substantive legal compliance and governance execution is critical. An institution may revise admissions criteria, disciplinary procedures or campus policies in good faith and with competent legal advice yet still face legal exposure if its board fails to engage meaningfully in oversight.
In investigations and litigation involving governing boards, scrutiny increasingly turns to questions such as whether the board evaluated legal risk, what information trustees received and when, whether authority was properly delegated and monitored, and whether decisions were revisited as conditions evolved. These questions are not abstract. They are answered through minutes, committee charters, memoranda, reporting structures and patterns of board engagement.
Recent federal oversight of colleges and universities demonstrates that regulatory scrutiny frequently extends beyond the legality of institutional policies to the adequacy of governance surrounding their implementation. Once significant legal or regulatory changes occur, governing boards are increasingly expected to establish reporting structures, monitor implementation, receive periodic updates and evaluate whether additional governance action is warranted. In this environment, governance records become evidence of whether fiduciary oversight remained active after policy adoption rather than ending once initial compliance efforts were completed.
Where boards treat implementation as a purely operational matter, they often underestimate how quickly governance materials become central exhibits in enforcement proceedings, regulatory investigations, state attorney general inquiries and civil litigation.
Common Governance Misreads by Boards
Several common recurring misjudgments appear across institutions navigating post-decision environments.
First, boards frequently over-delegate supervision without clearly documenting the oversight mechanisms that accompany the delegation. Delegation to senior administrators is necessary and appropriate, but fiduciary duty does not end with delegation. Absent regular reporting, defined benchmarks or documented follow-up, delegation can appear indistinguishable from abdication.
For example, a governing board may appropriately delegate implementation of revised Title IX procedures or other institution-wide compliance initiatives to university leadership. Yet if the board fails to require periodic reports, establish consistent measurable oversight benchmarks, schedule regular reviews of implementation or document its continuing evaluation of emerging legal developments, the issue is no longer delegation itself. Rather, the governance risk arises from the board’s inability to demonstrate continuing fiduciary oversight after authority has been delegated.
Barnes v. Charleston School of Law, a current case in discovery, illustrates the point. In this case, a male student alleged that he filed multiple Title IX complaints against a female student. Little, if any, action was taken – until the female student filed a counterclaim against the male student, and he was expelled from the school. The male student, Williams Barnes, then filed his suit against the school.
Setting aside the merits of either student’s grievance, any school opens the door to criticism when it handles one person’s grievance in a perceptibly different manner.[7]
Another mistake boards make is when they rely heavily on outside counsel without demonstrating independent judgment. While reliance on professional advice is a recognized component of the duty of care, courts assess whether trustees actively engaged with that advice rather than merely receiving it. Minutes reflecting questions from trustees, requests for additional information, discussion of alternative courses of action or direction for further analysis often provide more persuasive evidence of fiduciary engagement than minutes showing only that counsel presented legal advice and the board voted. Reliance on counsel strengthens fiduciary decision-making only when trustees demonstrate that they exercised independent judgment in evaluating that advice.
Third, many boards treat policy approval as a terminal act. In fast-changing regulatory environments, policies often require reassessment. Failure to revisit earlier decisions, particularly where new guidance, judicial decisions or enforcement priorities emerge, can undermine claims of reasonable oversight. Following the Supreme Court’s decision in Students for Fair Admissions, for example, many institutions in response revisited not only admissions policies, but also scholarship programs, outreach initiatives, institutional communications, committee reporting structures and governance practices to ensure continuing legal compliance as legal expectations and federal enforcement priorities evolved. However, the governing responsibility did not end when revised policies were adopted; it continued through the board’s oversight of implementation, institutional accountability and periodic reassessment.
Finally, boards sometimes conflate reputational risk management with legal risk management. While reputational concerns are legitimate, fiduciary decision-making must remain grounded in legal compliance, institutional mission and documented process. A decision driven primarily by public criticism, media attention, donor pressure, political scrutiny or other external influences may ultimately create greater legal exposure if the board cannot demonstrate that it independently evaluated its fiduciary responsibilities, considered the relevant legal implications, and exercised informed judgment that is consistent with its institutional mission.
The Role of Counsel in Board Governance
Counsel advising higher-education boards occupy a delicate position. They are legal advisors, not decision-makers, yet their guidance often shapes institutional responses. Clarity about roles is therefore essential.
Boards benefit when counsel frames advice not only in terms of legal permissibility, but also in terms of governance responsibility: what decisions require board engagement, what oversight mechanisms are advisable, and how reliance on counsel should be documented. For example, when advising a governing board regarding changes to Title IX procedures, admissions practices, institutional responses to judicial decisions or evolving federal regulatory guidance, counsel should do more than explain what the law permits. Effective counsel should also identify which matters warrant continuing board oversight, recommend reporting structures that allow trustees to monitor implementation, establish appropriate intervals for board review, and advise when evolving legal or regulatory developments require renewed board consideration. At the same time, counsel must be careful not to substitute legal advice for fiduciary judgment.
Where governance fails, it is often because roles blurred rather than because advice was unsound.
What Sound Governance Looks Like in the Second Phase
Sound governance in post-decision environments is characterized less by rigidity than by attentiveness.
Effective boards routinely ask whether oversight structures align with current risk, whether deliberations and reasoning are adequately documented, whether committee structures reflect institutional exposure and whether prior approvals should be revisited in light of new legal developments.
These questions are not prescriptive. They are indicative of a board that understands governance as an ongoing legal responsibility rather than a periodic formality. They also reflect an institutional culture that recognizes fiduciary oversight as a continuing obligation that extends well beyond the board meeting at which a policy is first approved. In this second phase of governance, the board’s responsibility shifts from approving institutional action to ensuring that implementation remains legally sound, appropriately monitored and responsive to evolving legal and regulatory conditions.
Conclusion: Governance as the Long Game
Legal and regulatory inquiries around DEI, accreditation and federal aid are among the ongoing issues boards will be obligated to address on a regular basis. These interruptions require proactive governance to maintain both legal standing and institutional credibility.
Higher education will continue to experience legal and regulatory disruption. Institutions that view governance as episodic, activated only in moments of crisis, are likely to face increasing scrutiny. Those that treat governance as continuous legal work, grounded in fiduciary discipline, active oversight and careful documentation, are better positioned to withstand it.
The institutions favorably positioned to navigate periods of legal uncertainty will not necessarily be those that make perfect decisions. Rather, they will be those that demonstrate disciplined governance, thoughtful deliberation, meaningful oversight and sustained fiduciary engagement long after the immediate controversy has passed.
Legal change may capture headlines, but governance determines whether institutions successfully navigate what follows. Compliance is not the end of fiduciary responsibility; it marks the beginning of a board’s continuing obligation to oversee implementation, monitor evolving risk and preserve institutional accountability through sound governance.
In the end, the most consequential question for boards will not be what they believed at the moment of change, but how faithfully they discharged their fiduciary responsibilities after the headlines faded.
Charles A. Montorio-Archer is an assistant district attorney, small claims court arbitrator and senior executive with extensive experience in governance, compliance and fiduciary oversight across public, nonprofit and educational institutions. His legal and executive background spans child welfare, education, housing, and public service systems, with a focus on process integrity, oversight, and decision-making under legal scrutiny. He holds a Ph.D. in public policy and has published on governance, leadership and institutional performance.
Endnotes:
[1] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023).
[2] Marybeth Gasman, Governance Under Pressure: Why Boards Make Abrupt Decisions – and Reverse Them, Forbes (Jan. 21, 2026), https://www.forbes.com/sites/marybethgasman/2026/01/21/governance-under-pressure-why-boards-make-abrupt-decisions-and-reverse-them/.
[3] N.Y. Not-for-Profit Corp. Law § 717(a).
[4] Id. § 717(b).
[5] Auerbach v. Bennett, 47 N.Y.2d 619 (1979).
[6] People v. Grasso, 11 N.Y.3d 64 (2008).
[7] Samuel D. Harrison, Mastering Title IX Compliance: Key Lessons to Avoid Legal Missteps, Saxton & Stump (Apr. 22, 2026), https://www.saxtonstump.com/news-and-insights/mastering-title-ix-compliance-key-lessons-to-avoid-legal-missteps/.
