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February 03, 2024

Listen to the Lawyers—or Don't?

"As your attorney, I must advise you to say nothing. To anyone. Ever."

By  Rachel Toor

The Sandbox

Inside Higher Ed Insider
An illustration of an interviewer being told a surprising tip.

From Rachel Toor

No surprise that a handful of presidents forwarded me this piece from The New York Times wondering if the Congressional hearings about campus wars may have had something to do with gender. 

While many of us saw the article as a duh story, I keep wondering why current, soon-to-retire, and former presidents of the kinds of institutions The New York Times likes to think represent the entirety of higher ed aren't speaking out on behalf of newer colleagues who have come into their leadership roles in a world that looks a little different than it used to. 

From the article: “ 'You have to be kind of an asshole to be president of Harvard,' ” Larry Summers told me in the summer of 2017, as Harvard began its search to replace Drew Gilpin Faust, its first female president, who had succeeded Dr. Summers."

So do women presidents just need to be better assholes? 

Or should they become mean girls?

The jazz-hands choregraphed tap-dancing of the too-long-for-a-movie hearings were an exercise in showing women attacking other women. Elise Stefanik got her starring role as the leader of the Plastics, going after the nerds.

Really, while many/most/all presidents receive critical feedback, from what I've heard no one is meaner than the (women) students and young alumni who post hideous and cruel comments on the social media feeds of (women) leaders, attacking the way they look, dress, and parent. 

That is not a surprise. What is, however, more disturbing is that it shouldn't be news to anyone that the horror show in Congress had a ton to do with elite-ness and hatred of higher ed, much about gender, and something, too, about race. 

With the current rolling back of civil rights for, well, everyone but well-fed white guys (and some RV-enjoying justices), is higher ed going to step up to the challenge of trying to maintain freedom for the rest of us? 

*********

We're always looking for ways to enhance The Sandbox and the Insider program, of which you are all paid members—thank you for supporting the (free) news provided by IHE. We're kicking around some possibilities and we'd welcome hearing directly from you with suggestions about what you need and would find useful. 

We are planning more webcasts for members, where we bring you experts and consultants to answer (anonymous) questions and provide guidance. (Do you want that, or are you webcasted-out?)

We've also had offers from presidents to host small, informal (it's The Sandbox, people!) gatherings on their campuses. If you're in an area with a rich supply of diverse institutions and can host fewer than a dozen people for, say, a dinner or brunch, we'll put together an invite list and Doug and I will come for some good Chatham House chat.  

Presidenting is a lonely job and having people you can talk about it with is key. We've heard that folks crave intimate conversations, more like phone-a-friend than paid consultant, with people who are willing to share experiences or war stories. We know you find peeps at new president boot camps, and conferences provide opportunities to meet people and reconnect, but is that enough?

Dating apps make it easy to find partners. I used Tinder for Dogs (Petfinder) to adopt Harry. Maybe we need an app for presidents in search of peers?

And, get this. We're thinking about reversing a trend and adding commenting on The Sandbox on our website. If anonymous and closely moderated, comments might be another way to allow peer-to-peer mentoring and build community. We're aware of the risks (the cesspool of vitriol) but we also know you all know how to play nicely. Right? 

Remember, we're not doing journalism, offering management advice, or providing a platform for bragging. The Insider membership is a service to the profession aided by those who are willing to be real and authentic.

Got ideas? Just drop me an email or friend me on LinkedIn.

*********

Everyone said: They shouldn’t have listened to the lawyers.

Sure, everyone. We know you think that. We've all heard it.

But let’s get real for a minute. How often do you blow off the counsel of people to whom you pay a ton of money for advice? How arrogant confident do you have to be to think you know better than an expert in a high-stakes situation? How much experience does it take—especially in a new role— until you develop a sense of when to trust your own judgment?

Sure, no one wants to be told what to do, but there are better and worse ways to offer (and accept) guidance.

As an editor, I learned that good feedback consists only of suggestions the author accepts. You can be 100 percent correct about what's wrong with a manuscript, but if you can't convince the author that you understand what they're trying to do, being "right" matters not at all.

That means they have to trust you. And as an advice-giver, you need to make sure you know what your client/author/partner/dog really needs and help them get to the place they want to end up. Like everything, it comes down to building and maintaining good relationships.

If you struggle to know when to listen to the attorneys and when to blow them off, well, you're not alone. 

Email me

 

Listening to the Lawyers

The writer is a current president

This morning, I thought it would be a nice day to drive to campus rather than work remotely, but then I called our lawyer and happened to mention this plan. 

She said that she wasn’t comfortable with the risk involved.

HAHAHA. 

But, right? 

As a newer president, I’ve been surprised by how much time I spend with lawyers, how much power and influence they have, and how low their tolerance for risk is. 

I’ve even heard an attorney brag about how much he enjoyed going to different offices with a large poster emblazoned with a red check mark with the notation “No!” as a way of educating clients about risk. 

What I am trying to navigate, then, like so many other presidents, is how to be innovative and creative, which entails trying new things and operating differently in the challenging higher ed landscape, while also listening to legal experts whose job entails identifying legitimate areas of risk and advising me and the institution accordingly.

The obvious challenge: to weigh the level of acceptable risk against the real danger that might threaten not just one’s job but the institution itself. It is, after all, my job to protect not my job but the institution.

There’s a middle ground between going full bore and saying “let them sue us” and taking the easy way out and passing up a new idea or initiative.

Where I have felt unsure in my role is figuring out who has the ultimate say in how to proceed in a given situation.

When does one “overrule” a lawyer’s advice and act in a contrary way? It doesn’t always feel appropriate to start a sentence with “I am not a lawyer, but…,” although many of us have certainly used that phrase, which seems to undermine whatever comes next.

I've been trying to give our lawyers a clear picture of what I'm hoping to accomplish. In other words, rather than laying out the situation or issue, I attempt to give them a sense of the direction I'm heading in a way that invests them more fully in problem-solving mode. 

For example, rather than asking about the pros and cons of getting rid of our football team (I know, I know—just using this as an extreme example, folks!) I might ask “what would be the best way to cut football and what recommendations do you have to do this in the safest, lowest-risk way?”

In some ways, this can be like dealing with our beloved faculty colleagues who at times seem to oppose every new idea on principle. Consulting with them early, often and openly, although no sure thing, can help prevent problems down the road. Perhaps we can all take a lesson from the administration-faculty dynamic as we interact with our legal staff. 

My interactions with outside counsel have included similar challenges. As I work more with them, [Ed.'s addition: leaning into my privilege as a white man!] my language has evolved in the direction of “You are being hired to help us get to ‘yes’ and not to educate us more about the risks.”

Recently I heard that a fellow president, when faced with a nay-sayer or risk-averse adviser, says, "Rather than tell me ‘we can’t because…,’ I want to hear, ‘we could, if…,’ tell me the ifs and I’ll decide whether I can live with them.”  That is great advice, and I think I'll use her approach in the future. 

As I move further into my tenure, I've learned that establishing a relationship defined by trust and mutual confidence with one’s legal team is essential and am making progress in that direction. Still, nothing quite prepared me for this part of my job.

On a recent flight, the pilot came out of the cockpit before we took off and said something like, “Ok, folks, I know most of you are not paying attention to me, but the lawyers want me to tell you to wear your seat belts unless I take the seat-belt sign off. I already know most of you know this and either will or will not, and I would rather not bother you, but I have two kids to send to college and I’d rather not get fired, so please wear your seat belts. Ok, I have kept the lawyers happy.”

See? It’s not just us. 

Go Ahead and Share

Please forward this newsletter to anyone you think might benefit from seeing it. We're  looking for presidents and chancellors (current and former) willing to write candidly, authentically, and anonymously for us, and for readers who are interested in understanding and supporting them. To sign up, click here. 

JOIN NOW

 

We believe in diversity, equity, and inclusion. We believe in access. We know the field isn’t level but think everyone should get to play—not just those with pedigrees and good breeding but also the scrappier ones who may have had a rougher start in life. This applies to institutions (community colleges as well as research universities), leaders (the Ivy-all-the-ways and those who came from less “traditional” backgrounds), and animal companions (we're not speciest).

Brooks Phang-Seng

Brooks Phang-Seng shares responsibility for making sure this newletter gets to your inbox on Saturday mornings. All typos, mistakes, and jokes that don't land come from his paws. 

The Sandbox

Not your typical weekly newsletter. This is a space where presidents and chancellors can say what they really think without fear. Everyone is welcome to read, but only those who have been in the top job can submit to us. The Sandbox, by Rachel Toor, is an exclusive benefit of our paid Insider membership program.

 

 

The Sandbox Archive

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The Real Text Messages of Lady Presidents

September 19, 2026

Retreat Rights

September 12, 2026

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August 29, 2026

Wackadoodle Newsletter Turns 3

August 22, 2026
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