By Andrew McIntyre

Law360 (September 30, 2020, 6:46 PM EDT ) California State University's general counsel and executive vice chancellor Andrew Jones recently spoke to Law360 about the university's decision early on to go remote for the entire year and the complex considerations related to flu vaccination as students start the fall semester amid the COVID-19 pandemic.

Jones said that Cal State at one point wondered if it could or should make the flu vaccine mandatory, but ultimately opted not to do so. The university was one of the first schools to announce that its fall semester would be online, although a small number of classes are happening in person.

This is the first in a four-part series of interviews with top college and university lawyers to discuss ongoing issues as students start the fall semester. This interview has been edited for length and clarity.

Cal State made the decision to go online-only fairly early on. What was your role, and what sorts of questions and considerations were involved in making that decision?

Well, the questions and considerations were probably endless, and we probably could spend all day just trying to list them, let alone discuss them at any depth. The decision was a hard one. It was a collaborative decision that was made after extensive conversations and consultation between the chancellor and the chancellor's executive management team, which includes the executive vice chancellors and vice chancellors of the system as well as all 23 of the campus presidents. We're spread out throughout the state, so there would be many many huddles with chancellor's leadership team, and then in turn extended conversations with all the presidents about the pros and cons of making the decision at all versus making it on the early timeline that we made it.

I should say that in every one of those discussions, and what made them both difficult and easy, was that we kind of set a mantra at the beginning that we were going to be guided by the North Star of health and safety of our students, our faculty and our staff. So some of these decisions sound very difficult when it comes to, for example, the economic impact of closing a door or doing away with food service and all the revenue that flows from those operations on each of our campuses. But when you overlay the health and safety of faculty, staff and students, there's a lot of clarity that comes to those decisions.

We had to consider testing and tracing. Do we take responsibility for those functions, or is that a county health responsibility? Do we do it on a mandatory basis, to the extent we can even afford to do it? Do we do it only voluntarily? If we were to pivot, as we ultimately did, and decant our campuses and send people away midstream, how do we handle issues such as the digital divide and the fact that we have some people who don't have equipment and can only access things digitally and online when they come to our campuses and use our computer labs? Or what about the people — our students and even some of our faculty — who might have the equipment but don't have adequate internet accessibility where they live? That's just a small sample of the kinds of things that were on our plate each and every day that we met to talk about these things. And we just kept trying to chip away at them one at a time and find solutions to the extent we could, or find some degree of acceptance that we would go forward nonetheless, even if there weren't good solutions to some of these questions.

How long would you say it took to arrive at that decision? That is, at what point would you say there were serious discussions to go online, and then what was the time frame between that point and when the decision was made?

To be candid with you, there has been such an unprecedented and unrelenting amount of stuff flowing at both the decision makers throughout the system and the legal office that it all kind of blurs together, and I don't think I can give you an accurate answer. I will tell you that it was made, in one sense, quickly and decisively, but in another sense it seemed like it's taken a long time because there were just so many issues that we needed to have at least some degree of comfort with before we made the ultimate decision. And there were so many stakeholders that needed to be a part of that conversation, and we didn't want to leave them out. So it was certainly weeks and weeks. I can't give a more defined time frame than that. And I know we started thinking about these issues as soon as this looked like it was going to be a major national issue, not just for higher ed but for the country. So in January, February, I'm sure there were some initial discussions. And then it became more real and more apparent, and the discussions just continued to intensify.

A lot of general counsel right now are dealing with health and safety issues due to students being on campus. Of course, you're not dealing with that because students at Cal State are not on campus. So what are some of the legal issues that you're working through right now?

Well, first, just to clarify, we made the decision to go primarily virtual in this current term. But that doesn't mean we don't have students on campus. We have a very small number of students that come to campus for certain courses that have been identified as mission-critical for their degree progress and are not capable of being delivered virtually, for example, an upper-division chemistry lab or something like that. So we've taken great pains to make sure that that can be delivered with appropriate social distancing. Sometimes it requires teaching multiple sections of the same lab — whereas before you would have done it once, we might have to do it three times. But there are students that come to campus for that, and we actually have some students who reside on campus despite our primarily virtual and remote model that we've established, because some of them have literally no place else to go. And others just need to return to the area for those limited courses that they may be taking in person, and there's no other safe environment for them to live in. So we do have a limited amount of population, and so there is always a concern of managing the ongoing health and safety — dealing with any kind of outbreaks and that sort of thing.

The other issues: We are constantly consumed with … class action litigation that's being been filed against us as well as [against] all kinds of universities throughout the country seeking the reduction or refund of tuition or mandatory student fees because of the fact that we've gone to a virtual format. We're dealing with testing and tracing obligations, capability, financing, the practical aspects of both those mitigation measures and how we're able to do them, to the extent that we're able to do them. We're dealing every day with issues about repopulating our campuses in the terms that begin in January. And we just made the decision like we did last time that, despite our desire for it not to be the case, that we have no choice but to declare that we're going to go primarily virtual again in the spring. But there are a number of issues that go hand-in-hand with that. We've had to deal with the issue of the flu vaccine, because it's so highly recommended that there's an increased effort to get that out far and wide so that we can better manage the COVID crisis. So the issue is, do we make that mandatory? Can we make it mandatory? Is it practical to make it mandatory? Because if we do, we still have to have a mechanism to consider certain objections, either health or medical objections or other legitimate objections, and do we have the bandwidth and the staffing to do that on a wide-scale basis. And when all of that is said and done, will we end up with still a critical number of people that aren't going to get it anyway because of these exceptions, or people who just won't get it and then do we have the capacity and bandwidth to take action against those [students]? … Or discipline an employee? It's just unfathomable to think about doing that on a scale with a system the size of ours, with almost a half a million students and another 50,000 or 60,000 employees. So we ultimately made the decision to strongly encourage the flu vaccine and to increase our efforts to make it more readily available on our campuses, but it's not required.

We've had to deal with conference cancellations for various things that happened throughout our system with different constituency groups meeting at off-site hotels and other venues to have conferences, and they've made commitments to those and now we've had to cancel them. So we've been dealing with invoking force majeure clauses from our various conference agreements. We've spent a lot of effort on licensing our facilities. Once we left our campuses for the most part, we had endless requests from counties and different agencies to use our campuses for emergency hospital or medical facilities, to set up triage centers and testing sites in our parking lots, sometimes housing people in our dorms — not necessarily COVID-positive people, but health care workers that have been brought in to ramp up staffing at local hospitals and so forth that needed places to stay. So we've had all kinds of issues about contracting and whipping together on a moment's notice contracts that try to help serve the public good and provide that sort of access, but at the same time protect the university and make sure that our facilities get returned to the condition they were in beforehand, because we don't have the money to pay for those kinds of things. So, you know, that was a very delicate task that we had to undertake.

Then there are issues about athletic programs, and then conflicting laws and directives. I would say that occupies a great deal of our time. We have ... funding from the federal government. And then we have conflicts with state law, and then each of the counties in a state like California has its own idea of the way to do things. And if we were one campus sitting in one county, that would be a handful of issues to deal with, but we've got 23 campuses spread throughout multiple counties in the state, and we were getting — and still get sometimes — conflicting directives and orders about how to handle things. It's not consistent throughout the state. And then there are even jurisdictional questions. When you're a state university and a state agency, to what extent do you cooperate with county officials, which of course we always do? And when and where do you have to acquiesce to their orders when we're the state and they're the county? It's just overwhelming. It's absolutely overwhelming.

So on the question of whether you could make the flu vaccine mandatory, were there county, state and federal issues there that you had to consider?

Not county so much. There were some state statutes that were applicable, and some case law that talks about carveouts and exceptions. But when we put all that into the mix, the conclusion was that we felt pretty comfortable that we had the ability to require them, but there were so many practical obstacles associated with doing that, and we didn't think it would ultimately change the end result. And so we thought our efforts were better spent [elsewhere], because we literally have limited bandwidth, like every institution and agency does. And there are so many of these issues to grapple with that we just thought we were better off strongly encouraging the flu vaccine and then ramping up our efforts to hold clinics and drive-through clinics on our campuses, and to increase the [flu] vaccine availability and capacity in our student health centers. And to do those types of things, we thought the overall outcome would probably be just as good, if not better, in terms of the number of people that probably would ultimately get vaccinated. And then at the same time, we would not have to create this entire infrastructure and bureaucracy at our campuses to deal with people who either refused or had some kind of legitimate objection to doing so.

You mentioned force majeure earlier. This was really the topic du jour in the legal community starting in March and still is a huge topic of discussion. Can you talk more about how you used force majeure?

I was not in the weeds on that issue. I do know that we did some analysis and tried to determine the applicability of both some of the specific twists and turns of force majeure as well as the more generic version of it that appears in most of our contracts, and we formed the conclusion that it was applicable to these particular circumstances, especially so when we were receiving things such as stay-at-home orders from the governor and other things that would make it impossible for us to comply. Many of the facilities initially pushed back and said, Well, you don't really have a legitimate force majeure claim, because your conference isn't until several months hence and there's no indication that these restrictions will still apply. And we responded by pointing out that the orders that we were referring to, the stay-at-home orders and other types of restrictions that were in place statewide, didn't have an end date at the time. And so we said we have no reason to believe that it's not going to still be enforced on the date of our conference, and of course, we, like you, the hotel facility, need to be able to plan accordingly, so we're going to stand by our assertion of the force majeure clause. And I think so far in every instance, they have acquiesced and agreed with our interpretation and refunded the money. 

I want to walk back to early March when COVID-19 was declared a pandemic. What were those initial weeks like for you in terms of figuring out what the major issues were and how to deal with what I assume was an incredible amount of work that came very quickly?

We talk a lot in our jobs as university counsel and general counsel and campus attorneys that our job is very triage-oriented, and that was never more the case than when all of this first landed on our doorstep. Every day was just a new experience of triaging issues that we not only had not dealt with before, but we'd never really even thought about or in some cases even heard of. And with almost all of those issues, the answers were nothing close to being apparent. It's a situation where you look at the issue of the day and you can more or less identify that issue, but where the answer is, where you would go to find that answer or how you'd even start to narrow down the possible solutions to that was just simply unknown. My legal team, all the folks in my office, walked headstrong into that situation every day. They've been doing that every day since, I would say, late February, early March. And the list just keeps scrolling. The [list of] issues doesn't seem to get shorter. They just kind of change from day to day or week to week and things become the new hot button.  At one point it was the testing and tracing that I referenced earlier. In another given pair of weeks, we might have been dealing very intensely with flu vaccines. Now, we're turning our attention to things like our ability to control off-campus behavior of our students, which normally we don't do. But if we have students living in a small college town somewhere in California and they're flagrantly running afoul of all kinds of local COVID, health and safety restrictions, can we and should we step into that situation and impose discipline or do other things to try to help control the pandemic? I mean, these are all unanswerable, difficult issues, but they just keep coming at us day after day. So it's been like drinking from the proverbial fire hose nonstop for months on end.

I was going to ask you about sort of current issues and where you see things going in terms of issues that may come up this fall. You recently decided that the spring semester will be largely online again. What are the big considerations that you'll be looking at over the next couple months?

A lot of it will be a continuation of the issues we've been dealing with this first predominantly online semester that we're in the middle of now. Trying to narrow some of the digital divide and providing more ways for students to get meaningful access to the online content. We've converted parking lots and other facilities on some of our campuses to gigantic hot spots where students literally can drive into the parking lot, stay in their car, open up their device, connect to the internet and hear their lecture or their course material in that way if they can't do so at home. I think we're going to start to have more employment-related issues. We've been able to kind of ride this out in the first several months where we have employees that can't come to work or don't feel they should come to work for health-related reasons. But we have some people whose jobs aren't amenable to being done remotely, and at some point, we have to figure out a longer-term plan for trying to preserve their jobs and find something for them to be repurposed to, or to figure out maybe some additional variations of our lead structure to try to preserve jobs to the extent that we can. What's layered on top of all this … is that in the middle of all of these difficult issues and enormously complex problems to solve, the state had had a financial blow to the belt and our budget has been cut significantly. And so we're doing all of this [while] at the same time managing a budget crisis. And of course now, 'tis the season in California — we've got wildfires everywhere you turn. We have some campuses that could be open to some limited extent for this online instruction that I mentioned earlier, and now at the drop of a hat, we've had to close those campuses either because of a direct threat from the fire and the flames or because of just really, really terrible air quality from all the smoke. And so that's a daily report that we get as well. 

I wanted to ask you about the makeup of your in-house legal department. How many lawyers do you have in-house?

Let me do a quick calculation here, because I always want to get this right. I have 32 attorneys. We are extremely lean for the size of our system. Were it not for the fact that they were all so talented and dedicated, we would never be able to pull this off. So I have six in-house litigators, and then the rest are campus attorneys that are centrally located, for the most part, in our headquarters office in Long Beach, but are assigned to represent and be the general counsel for their assigned campus, one of our 23 campuses in the system. And then in addition to that, each of those campus attorneys, as well as the litigators, are responsible for being the resource person, kind of the office expert, if you will, in any one of a number of areas — most people carry between two and four specialty areas in addition to their campus assignment or their litigation assignment. And then there's the general counsel, which is me, and then I have a deputy general counsel that helps me run the whole show. 

I also wanted to ask you about outside counsel. You probably use various law firms, depending on the matters, but can you give me a sense of one or some of the outside law firms you use?

Well, we have three sources for whether it's litigation or just specialized knowledge that we need. First, we of course turn in-house to either a litigator or one of our subject matter specialists. We also have the option of going to the California attorney general's office — we have a contract with them, so a number of our litigated matters are placed with them. And sometimes when we have statewide issues, you know, joining amicus briefs of issues of statewide concern or national concern, we'll often consult with the attorney general's office.

Outside law firms, it runs the entire gamut. You know, we try to be very inclusive and we have the big national firms, the O'Melveny & Myers LLPs of the world, for isolated issues where we really need the big guns with a very deep bench. But of course, they come at a higher cost. And so we try to be very selective in our use of those kinds of firms.

And then we have everything from medium firms to very small shops that have boutique specialized knowledge that we might need in a given area. At any given time, we'll have between 100 and 130 active matters of litigation going on throughout our system. So as you can imagine, with only six in-house litigators, we've got things spread out throughout the whole state. And oftentimes, of course, we're going to a geographically positioned attorney because they're in proximity to whichever campus is involved in that litigation.

What's the trickiest or most difficult decision or issue you've had to deal with during the first six months of the pandemic?

Wow, it's so hard to pick. I honestly don't think I could identify a single one. I mean, we've obviously had tremendous challenges with strategic decisions. We've never had five class action lawsuits pending against us at the same time — I mean, most times we have zero class actions. On occasion there might be one that springs up for a reason or another. So just the bandwidth required to not only staff those but to manage those and then to do so in a cohesive manner is just overwhelming. I think among the biggies would be the decisions to go on a remote model for all of our campuses. But probably one of the biggest is this ongoing issue of testing and tracing and the interplay with local health officers and their jurisdictions compared to us as a systemwide state agency. I think those kinds of nuanced issues have occupied an enormous amount of our time.

This is the first in a four-part series of conversations with general counsel at colleges and universities as the fall semester begins. The next conversation in the series is with the general counsel at Duke University.

--Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.