Ep. 92 - Faith, law, and the future: Governance in a shifting regulatory environment

What happens when federal education policy changes, roiling higher education, without specifically mentioning theological education? The Rev. Dr. David Rowe and Law Professor Peter Lake unpack the ripple effects of new regulations, executive orders, and court cases on theological schools. From accreditation challenges to spiritual care for students and the risk of mission drift, this conversation offers thoughtful frameworks for boards and presidents navigating chaos.  David Rowe can be reached here. Peter Lake can be reached here. The legal case that Peter Lake mentions is Catholic Charities Bureau Inc. et al v. Wisconsin Labor & Industry Review Commission et al. The previous podcast episode can be found here.

Transcript

SPEAKER_02: 0:03

Hello and welcome to the Intrastenter Podcast, where we connect with experts and innovators in theological education around topics important to theological school leaders. Thank you for joining us. Hi, everyone. Welcome to the Good Governance Podcast. I'm Matt Huffman. Uh, for anyone in higher education in the United States, uh, you've probably paid attention to the news and the changing number of news uh stories about higher education, about what the federal government's stance toward it is. And in March, I had a great conversation uh with David Rowe and Peter Lake about how the administration was changing higher education. Well, in the time since, we have seen more executive orders and more actions, more court cases. So I've invited them back. So today I'm I'm pleased to uh reintroduce and welcome back the Reverend David Rowe, a former president who has served in both undergraduate and graduate settings and in theological higher education. He's a consultant now and a governance coach who works with us at the Intrast Center. David, welcome back to the podcast.

SPEAKER_01: 1:14

Thanks so much, Matt.

SPEAKER_02: 1:16

And also again joined by Peter Lake, a Harvard-trained lawyer, a law professor, a scholar, a trainer, an expert witness, an author, and a consultant. He is a recognized expert in higher education policy and compliance. Peter, wonderful to have you back on the podcast.

SPEAKER_00: 1:35

Great to see you too, Matt.

SPEAKER_02: 1:38

I don't honestly know how to summarize what has happened over the past few months. I say that as somebody who has covered government at all levels, including the federal government, uh, for years in secular journalism. I mean, I've had conversations with uh uh secretaries of the Department of Education, the Federal Department of Education, State Department of Education, uh, with accreditors, both as a journalist and as somebody who has worked in higher education. And quite honestly, I'm at a bit of a loss. Um, so Peter, um, I would you you you have written on this, you are a well-known expert on this. Help me find some frameworks for this, because this has been a chaotic time uh to wrap your head around. And if if a listener here is say sitting on the board of a school or as a president, um I mean, my first my first little bit of wisdom would be grab a paper bag and start breathing into it. More seriously, help me frame this so we can we can see because what we've seen in the since last time we chatted, uh there's been an executive order on um uh on accreditors, uh really pointed more towards some specialty accreditors, not in theological education, but but in in what appears to be regional and and certainly in in some special fields that the administration's taken uh aim at, as well as some things like immigration policy, which is going to affect higher education. So let's uh I'd love you to start and just help me frame it so I can take the paper bag and put it down and start to breathe easily.

SPEAKER_00: 3:29

Yeah, Matt, well, I'd say that in chaos, I get very situational.

unknown: 3:33

Okay.

SPEAKER_00: 3:34

So I'm I'm looking at our audience today and saying that there's a big difference between being in the boiler room on the Titanic and already being in a lifeboat waiting for the Carpathia to come rescue you. And so we're we're very much, and I say we, the audience today, and those of us are talking or in the theological sector, you know, we're dealing with a lot of fallout, not energy directed specifically at this particular area of the industry, but the fallout implications, things like immigration, cutting Pell Grants, uh, et cetera. And I think that's that's where the concern level is that the war may be going on in another sector, but everyone's impacted by it. What is it going to look like for life in this sector? And I'd say the one thing that, you know, I at some level I would wish we had a little more of is more specific articulation from the Trump administration as to what their intention is with the theological sector. They've been articulate with other sectors, but not so much with this one.

SPEAKER_02: 4:35

Right.

SPEAKER_00: 4:35

And that could be a good thing. I mean, not coming in the radar is good, but it also leaves a certain amount of uncertainty. So I would say, Matt, let's frame our discussion today around what it's like to live in uh higher education wartime when it isn't your city that's under attack, but could be implicated by the battles that are going around just down the street with sister and brother institutions.

SPEAKER_02: 5:01

That's a great point, Peter. I think there are some things that are uh collat, you know, where there's a collateral damage or collateral issues where maybe the administration isn't thinking about theological uh education particularly. Um but you know, as you've noted, as as we've talked about uh separately, I mean, there has been some specific guidance, there has been some specific guidance for certain sectors or you know, certainly the executive orders are targeted certain types of accreditors. Um but so I th I think there are two things I'm hearing there. One is uh there's there may be some panic or anxiety, I think, certainly in the field, uh, where there's uh no clarity and and it could be us. Um and then on the other side of that is I think that lack of clarity may lead some folks to take some action or make some assumptions.

SPEAKER_00: 6:00

Um you're absolutely right, Matt. I mean, for example, the Trump administration has communicated with tribal colleges and said that teaching indigenous history is not a violation of the DEI edicts that they put out. That's good comfort to them at some level. HBCUs have gotten an executive order showing support.

unknown: 6:19

Right.

SPEAKER_00: 6:19

So they admittedly they've, you know, talked back and said, well, you're helping us in some ways, but hurting us in others, but not deliberately. But it's just we're having collateral damage from all of this. And you know, if you're a medical school or a law school or perhaps a major Ivy League school, your accreditation battles are just ramping up. Um, but yet I haven't heard really much of anything about, you know, for example, ATS or the theological world as in particular. And I think there's been an instinct in this environment is if I'm in the trench, there's no particular reason to pop my head up and start saying, what about me, to draw attention here. But I think at some point the sector has to think about even if they aren't targeted or even if they're implicitly supported, there are things that could happen that could be very detrimental to the sector if you're not paying attention. And, you know, for example, I'm reading already about issues associated with rural students whose only access is to a theological program. And with the cuts that are being anticipated, we're thinking that some of those programs will disappear. I can't believe that the Trump administration wants to deny access to a Christian education for a rural student. I don't think that's their goal in any shape or form, but it could happen as an indirect result of other activities. And I think that's the sort of thing that has been keeping me up with this sector.

SPEAKER_02: 7:46

Yeah, those are good points. David, I'm curious, as as you're hearing Peter talk, and and as we've talked before, there's a lot to think about as a leader of a school or somebody on a governing board. I mean, we've talked in the past about first, you know, federal government, federal money and oversight is often a Trojan horse, was was Peter's phrase of, you know, it it comes and shows up, and then you're not sure what you're letting in or not letting in. Um, there's also, you know, questions of you know, clarity of your own denominational and and what your own First Amendment rights are. Um, you have you know, you have advised theological schools, you served as the president of one, you've you've been a leader in higher education for years. Um, how are you framing this right now, given the the latest news?

SPEAKER_01: 8:41

Yeah, I think uh one of the things, appreciate the the question, Matt, and appreciate uh Peter bringing these insights to us um as we think about the sector. Um, as Peter was talking, one of the distinctions that came to my mind was we may need to be more explicit about differentiating our roles as citizens and our roles as trustees or presidents. So there may be an obligation of citizenship and an obligation of trusteeship and an obligation of leadership that all have somewhat distinct responsibilities. And um I think in some cases we might uh see those lines blurring a little bit and want to be good citizens in the moment, however, we define that for ourselves. But one of the things that remains clear is that as uh trustees or as leaders of institutions, we have an obligation to the mission of the institution and to the financial vitality of the institution itself. And so the last time we were together, we talked about alligators and making sure that we stay focused on the alligators. Right. And there might be more alligators kind of circling in the bayou that we need to be uh paying attention to. But uh the one thing I would advise leaders and boards to do is again, not be distracted by the headlines when you're when you have your trusteeship hat on and your leadership hat on, but make sure that you're really focused in on what's in the long-term best interest of the institution that you're serving. And that's always been our frame. It always needs to be our frame. It doesn't mean that the questions are, you know, any simpler because the frame is clear. But I think that, you know, trying to measure each of these things in terms of the long-term best interest of the mission and the institution that you're serving is is uh really important as when you're certain when you put have that trusteeship hat on and that leadership hat on. And um there may be there may be a role for you as citizen or even as a corporate citizen to play, but it it might uh don't don't let that get confused with uh what it means to be a trustee or a president right now.

SPEAKER_02: 10:46

Well, that's a great point. And and I want to press on that a little bit, because if you know, depending on my theological tradition, part of that may be there may be, for instance, a real belief in justice. And in a biblical sense, however I come out on that. So in that sense, part of my mission, I may feel, is to whether take to the picket line to push back, you know, as as Peter was saying, may not be the best time to raise your hand and say, you know, we're in the trenches over here. Or, you know, your analogy with the alligators perhaps maybe not the best time to like get close nose to nose with one. Um but what do you what do you recommend to a school or what uh what kind of things should you be thinking about? Because as you're talking about the fiduciary responsibility uh or the responsibility of a trustee is more than just financial, it's this long-term holding on to the mission. Some of the tension for our schools um and many of our schools is hey, we're not happy with what's happening here. We see injustice. How do you respond?

SPEAKER_01: 11:58

Yeah, so I I think first of all, you want to do a gut check and make sure that that's been consistent for the institution for some period of time and not just in the last several months, right?

SPEAKER_02: 12:07

Sure.

SPEAKER_01: 12:08

And and that that commitment is authentic, it's uh consistent, it's persistent, it's clearly a part of your mission. And I think uh better, better yet, if you can locate it within the broader context of your faith tradition, that uh you know you you can understand yourself as uh authentically expressing the mission of the institution and the faith commitments of the of the denomination that you might be most closely affiliated with. On the other hand, you also you also have a duty as a trustee to be in compliance. And so that that doesn't go away, right? Just because you might disagree with the way that a particular regulation is being interpreted or enforced, you have to you have to decide uh you know what's in the long-term best interest of the institution and is is being out of compliance in the long-term best interest of the institution. And so uh I hasten to add, though, that a lot of the regulations haven't changed. I mean, Peter can can clarify if if this this is true or not, but but I don't think a lot of the regulations have changed. Some of the definitions of some of the words, you know, are being uh interpreted in a different way, and some of the enforcement is being um kind of aimed in a specific direction right now. But the responsibility to be in clock in compliance with the law and with the regulations hasn't changed. And so you you have to you have to weigh in the boardroom or in the president's office, you know, how are we complying uh with the law, with our our creditors' uh expectations at this particular time? And if if we're not, you know, what are the what are the consequences and the implications of that? I for me, the only the only real red flag in the in the boardroom right now should be is if if decision making is clear. You know, these these tensions are really are really difficult, but I think trying to tease out um you know what's in the long-term best interest of the institution is not necessarily easy right now, but should be the the North Star.

SPEAKER_02: 14:20

Peter, there is um no shortage of things I think to talk about in terms of that. I mean, for like David's point about how a board comes at it, um, is as we frame some of these discussions. I mean, we're we've talked about um, you know, some of the things that that are out there, immigration. Um, you know, there are schools with uh with uh large populations of their enrollment coming through immigration. Um there's student aid. Um again, I think the last time we talked, you know, we we talked, as I mentioned, about the Trojan horse idea. Um, but there may be cuts to that coming. Um what issues are out there? Other issues uh would you say that a governing board or a leader in a theological school ought to be paying attention to?

SPEAKER_00: 15:09

Well, you know, I I do think that each institution is situated uniquely in terms of how it wants to respond to what's happening. I love what David said. I think you need authentic authenticity, consistency in the way that you articulate. But if there is a theme that permeates, I would say this is probably a time to make sure that we tend to the shepherds as much as the flock. And so for this particular sector, I would say the students are going to have challenges getting enough resources to go to school, to stay in school, and come to the United States. And this permeates all sectors. I think it will have an impact in the theological sector. And so, if it were me going into board meetings over the summer or early fall, I'd be really stressing uh student access, student persistence, student wellness, uh, basic needs issues that may come up. Because when you look at some of the cuts that may occur and some of the barriers that may be out there, I think you're going to see more students struggling to do what they really want to do. And I hit one earlier in this Matt is, you know, what about that kid that lives in a small rural area? And the only option really is the theological school, and it's no longer there. So I think we're gonna have to dig deep in our tradition and say, how will we find a space for that student at our institution if it means transporting them hundreds of miles to another location, what that means and being taken away from the family unit, support structures, et cetera. Um, I think that's gonna be job one, um, particularly in this sector. And I know a lot of our institutions, you know, I say ours, I hope I feel included in the group, or outward faith. In other words, they're mission-based. You know, we're bringing, we're teaching people with a purpose to bring something to society. And I don't mean to abandon that, but I do think that you need to focus on the people that are there that are learning and teaching so that they can continue the mission of the school. I think it'll be more challenging than ever. And I think many of them will have spiritual challenges during this time. My what is my place in history? What is my place in time in higher education? And this is where board leaders in particular can be incredibly impactful on student lives by saying you are at a unique point in history. This is an inflection point. And again, across the spectrum, some of the institutions are embracing what's happening with this administration. Others are somewhat neutral to it, some may oppose it. And I think you've got to get situational to understand who are my students, who are my thought leaders, and how are they being impacted by this environment? Uh, this is a time for spiritual leadership, uh, in addition to financial, because again, these missions are not neutral on that. They're not like your typical public state school mission, right? You know, more science, more outcomes. Um, our outcomes happen on dimensions that uh, you know, lack the traditional measurements of uh the scientific method in some ways. So that's that's important to us.

SPEAKER_02: 18:08

Well, that's those are great points, Peter. I think that you know, how we measure success in this field, uh obviously there are outcomes that we all look at, but the the spiritual nature of this and and the missional nature, I'm curious if you would talk a little bit about, you know, uh, as you mentioned, David talked about authenticity of an institution and what they believe. Uh, there have been a number of court cases recently, or a few key court cases, I think, that are working through, uh, as well as I think some other challenges in the legal system where authenticity seems to come up. Um and talk a little bit about, if you would, the importance of that or or what you see or on the legal side of how that's represented and what that means what that means to a school.

SPEAKER_00: 19:02

Sure. And you know, we have a limited time, and the last thing you need is a two-hour recitation from a walk around a series of cases. So I'll cut to the case, Matt. And there's one case that's I think super important for everybody to watch. It's the Catholic charities case. Um, and it it raises an issue that I think exactly raises this authenticity problem, because Catholic charities became somewhat ecumenical. In other words, they absorbed other religious traditions to do their work and perhaps arguably drifted away from Catholic theology. And so the state of Wisconsin said, look, you look like a thrift store to us, not a religious activity. You're not really part of the church. But for anyone who knows anything about higher education history, you would know that the Elamasinery Corporation or Charter is the root of all American higher education, the arm of the church to give alms to the poor. And this is what Catholic charities is it's the modern descendant of an old Elomasinerary concept. So, right before the Supreme Court, I think is something that's central to what we're doing, and even what David said earlier. Um, have we expanded our mission in a way, and perhaps to some viewers, visibly drifted away from a religious tradition and to the point where we really can't claim it anymore? And I think that's where we're going to see some of the tests here is oh, oh, all of a sudden you're talking about your religious tradition. Well, how come you weren't talking about it this way before? There may be very good arguments about that, but I think now is the time, ahead of controversy, to begin to prepare the field, understanding that standing on your religious traditions may be very important to mission survival and thrival, you know, down the road. So please watch this Catholic charity's case because um the pundits seem to think it's going to come in favor of the charity. I'm not willing at this point to throw out a prediction as to which way, but it might be helpful.

SPEAKER_02: 21:03

Well, it's a it's a fascinating case, as you say. I mean, they the the the argument Wisconsin has is they drifted from that. Um in and that's an interesting point of theological education, particularly as schools have looked for students in other places, and the question I think may come up. So I want to talk a little bit in the time we have remaining, accreditation. Certainly with the the the president's executive order and accreditation, everybody in higher education, I can feel my neck tightening up, right? I can, you know, what's it going to mean? Um, and and let's talk about this. And David, maybe start with you as a as a president, former president of a school, um, what are you looking at? How concerned would you be with accreditation? And then Peter, I'd love your thoughts about what that may look like in the in this sector.

SPEAKER_01: 21:57

Yeah, I think to watch is is how um states and and the federal government actually start regarding the regional accreditors and and all of our schools, you know, depend on regional accreditation and in addition to the ATS accreditation. And then a lot of these uh specialty accreditors kind of build on whatever's happening at the regional level. And I think they're gonna find themselves under a lot of pressure uh in the in the coming weeks and months and um years. And I think that we we need to kind of keep our eye on on what's happening there. Uh one of the one of the things I you know, kind of want to get a little bit uh pragmatic and less philosophical. One of the things that accreditors are are good at is is making sure that we're um you know, kind of in a mode of continuous improvement and that we're also financially responsible. Um uh in the theological schools didn't really need another existential threat. But if you know, I here here we here we have one. You know, if the if international student enrollment is depressed, um then uh we may have a hard time demonstrating to accreditors that we're financially viable if we have a hard time enrolling students because they can't have access to federal student aid, uh, then we might have time demonstrating that we're financially viable. So I I think there there may be some thing on the on the financial front that we probably need to watch out for on an institutional level anyway, but I think accreditation is also going to be um kind of um looming over that as as well. And so uh, you know, there's there are schools in other sectors that are starting to have the permission to do accredited accreditor shopping. And I'm not sure that theology schools will all will have that um opportunity, but but they they need to be paying attention to that that shifting landscape because it's it's something that we've taken for granted for a long time. But even the names of the accreditors uh uh hitched to regions uh is is not anything that is necessarily relevant anymore.

SPEAKER_02: 24:06

Good points uh in all in all uh sides of that. Uh Peter, thoughts?

SPEAKER_00: 24:12

Matt, you know, back to the collateral impact point. I mean, it seems that the target of the accreditation wars, medical schools, uh particularly law schools. I mean, the ABA, I assume you know, but Pam Bondi's ordered her staff not to attend ABA meetings. I mean, you know, there is a real shakeup coming in legal accreditation and it's intentional. And then, you know, as we talked earlier, a lot of the accreditation stuff is focusing on IBs, big privates. Um, the underlying energy is what's being taught and who it's being taught to and how is needs to change. And I think there could be quite a bit of unintended consequence with this, because you may see a lineup around the idea of more required curriculum around constitutional civics and the history, Christianity's role in the formation of the United States. And that particular particular vision or set of visions might or might not resonate with various theological schools, all the way from the right to the left spectrum. So, you know, and I don't think people are sort of thinking that far down the chessboard, but I think it's going to happen. And then David pointed out that we we've already had edge apocalypse happening. You know, we have all these poly crises pressing down. This doesn't make things any easier. And so the financial issues may come about. And I could see, you know, a dark scenario. I hope it's not true where a year and a half from now we're looking at, you know, real stress in the theological sector for some schools, and the schools having to band together to go to the federal government saying, you may not have intended this, but you've got to help us out. Um, I don't think you realize how the collateral damage is now impacting our financial well-being as well as our internal operations. So that I think is part of the preparation this year is um, you know, to make peace prepare for war and be prepared for the potential scenarios, but not to overcorrect either, but to realize that these things are are within potential reality, even within 18 months or a shorter time frame.

SPEAKER_02: 26:22

Well, let's let's wrap up this way. And those are great thoughts. Um, there's a lot to absorb. I'm gonna put a link to um the previous podcast we had, the previous discussion. I'll put a link to some other things as well, um, and as well as both of your web pages, contact information so people can reach out. But real quickly, last thoughts. Is there anything I haven't asked that I should have, or anything that somebody um in theological education should be thinking about? You know, Peter, you just talked about things down the chessboard that um I I don't think a lot of us may be thinking about, uh, but other things that ought to be on the discussion, or that the next time, and I'm sure we'll have another conversation uh that we ought to be thinking about. David.

SPEAKER_01: 27:09

Well, for I guess I'd say don't stop thinking about tomorrow. Uh, right. I mean, uh we we there's a lot of things to think about today, but I mean, think about tomorrow and the day after tomorrow. Uh the the role of the board and the president is to have the long-term best interest of the institution in mind. And so um there there will be a you know, there there will be a year, a year, you know, we will have to, these institutions have to thrive through 2030, 2035. You know, think about what life looks like then and what your dis how your decisions will be read back to you then. And so, so be be thoughtful about that, but also be be mindful of the the financial realities. I think again, uh there could be some short-term and some long-term, particularly if undergraduate enrollment is depressed. Uh, the number of students coming and seeking graduate education of any type could be uh even lower than anticipated in five years. And so we need to be thoughtful about that. And I guess I would say, you know, Peter uh said we need to take care of the shepherds too. I just remind our audience that when COVID hit, we all spent a lot of time trying to figure out how to move classes online, and very few of us spent time helping pastors to figure out how to move worship online. And so uh we serve a broader community in the theological education sector. And so while we it's easy to get inward focused here, uh let's not miss the opportunity uh to support our graduates and those who are in leadership positions in faith communities. And let's not miss the opportunity to bring uh disciplined moral reasoning to a society that could use it right now.

SPEAKER_02: 28:55

It's a whole lot to consider there. Those are great thoughts. Peter, any last thoughts? Anything we haven't discussed?

SPEAKER_00: 29:01

Yeah, I've got something very operational and something very aspirational. So I'll start with the more tedious operational stuff. Following the idea that the law is still a law until it's not, there are plenty of compliance obligations that are not getting front-page news, but they have to be accomplished. So we still have cleary reporting requirements. There's a new hazing bill that's been passed that requires compliance. And then it's a lift, Matt. It's not something that can just be done in an hour. It takes some intentionality to make that work. Title IX, 2020 regulations are fully in force. So don't forget that the other less um front-page news compliance obligations remain very much part of the legal obligation of institutions. And it is easy to get caught up in the big stuff that's drawing attention and let these other things drift. Um, and then I'll go to the aspirational point. And I have always said this, I'll remind this audience, but all American higher education essentially originates from faith in a church. I mean, this was very unique part of the American colonization experience. Higher education came with the church to the new world, where a lot of folks came to exploit for resources or other reasons to expand population. Higher ed and faith landed first and have been the foundation. And I think it's very important for this sector to keep reminding America that in many ways we're the grandmother, godfather, however you want to see it, of all American higher education. And the soul of this country in its higher education system is faith and inspiration. Now, some people have moved to a faith and inspiration more in the scientific method, more sectarian goals. But that's who we are. And there is no American higher education system that lets its faith-based institutions atrophy or disappear. That we it just wouldn't make sense in the American experiment to allow that. And I think that's a talking point as a larger community to keep hammering that. Um, anyways, we got this started, is the way I would put it.

SPEAKER_02: 31:06

It's a great point to finish on. Peter Lake, David Rowe, thank you very much for joining the podcast once again.

SPEAKER_00: 31:16

Thanks, Matt.

SPEAKER_01: 31:17

Thank you, Matt.

SPEAKER_02: 31:18

All right, you'll find more at intrust.org slash podcast. Find links, more conversation points, and everything I promised. Thank you for listening to the Intrust Center's Good Governance Podcast. For more information about this podcast, other episodes, and additional resources, visit intrust.org.