COVID-19 has proved especially troubling for education.  The pandemic challenges every aspect of the educational enterprise and at every level.  Yet decisions have to be made:  should commencement take place?  Should distance learning become the norm?  How do residence halls, dining halls, and athletics operated in “plague years?”  What should institutions do about tuition if it doesn’t pay for exactly what the payer expected?  What are the legal risks if students return to campus and become sick with Covid-19?  Or worse, die?  To chart a course institutions need transparent, inclusive, and collegial decision-making processes.  Leaders frequently cut corners only to pay a high price later.

The pandemic reminds us that traditional educational methods still have merit.  Teachers and students are finding that video classrooms cut out multi-dimensional and multi-sensory aspects of education.  Nuance is gone.  This phenomenon is as true for 7th graders as for college, graduate, and professional students.  At best, remote learning fills a gap.  At the same time, computer interaction between teacher and students can enrich the educational experience so long as it is not all there is.  Of course, distance learning is useful.  Soldiers and sailors on deployment know that.  But it should not be the only or even the best educational model.  But planning how to go forward in anything like the traditional way requires answers to still more questions:

·      What is the appropriate, medically-based, public health response to an ongoing pandemic or the risk of a pandemic in the future?

  • At the moment, there is no consensus about the causes, transmission, and cures, if any.
  • Based on previous experience, a COVID-19 vaccine is months if not more than a year away.
  • An economic deep freeze is unsustainable.

·      Is it possible for dormitories to reopen without creating COVID-19 petri dishes?

  • Is it possible radically to change undergraduate living habits?

·      What are the real legal liabilities?  Can they be limited by contract, behavior, and/or legislation?

The fact these questions remain open could be an excuse for indecision.  But they need not be.  Through a reasonable process, mapping what is and is not known, decisions for the short- and perhaps medium-term can be made that stakeholders will accept.  Such a process must be inclusive, transparent, and collegial or acceptance will be hard to imagine.  Where such a process does not exist, it must be created.  Urgently.

What kind of process is needed?  Certainly not a process for its own sake.  Rather, something that breaks down bureaucratic and institutional habits of isolation and specialization.  Stove-pipes and silos are normal in higher education.  Departments, administrators, and students stick to their knitting.  Interdisciplinary and inter-institutional collaboration is relatively rare, often dependent on personal connections rather than institutional cross-fertilization.  A pandemic demands that these habits end.  The goal of this process must be informed decisions.

Most crises demand a strategic map of assets, liabilities, and risks.  With as full knowledge as possible at a given time, development of strategic goals becomes possible.  A planning process can be implemented.  The results can be the basis for action all the while recognizing that plans change when they confront reality.

Inclusiveness means more than the usual administrative participants.  The general counsel, the public affairs officer, the provost, the dean of students, deans of medical and law schools if they exist are obvious members.  But grounds crews, maintenance, and athletics are essential as well.  In short, the institutional muscle must be brought to bear.  Decision-making processes take time to gel.  In a crisis, trust-building among participants may occur quickly.  If it does not, the process will bog down in disputes about turf.

The process is indispensable for successful navigation, not only of the short-term problems produced by COVID-19; they are essential for institutional health going forward.  Once again, the strategic asset map is essential.  For example, an institution facing severe budget issues, needs to know how best to deploy its people and know what strengths to feed and weaknesses to do without.  Without a strategic map, decisions in the common interest about these important matters are difficult, perhaps impossible, to make.  To govern is to choose a wise politician once said.  That is as true for colleges and universities as governments.  Process is essential to the best-informed decisions, even in a crisis where the instinct is to cut corners.

With process, enter the lawyer as counselor.  Lawyers traditionally are guardians of process, whether in a judicial or decision-making setting.  They help ensure that decision-making processes are inclusive, transparent, collegial, and effective.  They can help institutions “get to yes” in ways all stakeholders can support.  Zumpano, Patricios & Popok are rich in the kind of experience institutions addressing crises can draw on to avoid and overcome obstacles.  They know how to advise and protect higher education leaders and boards of trustees.  And they believe the earlier the consultation the more effective and cost effective the advice will be.