HSE’s Higher Education Group has extensive experience and brings a perspective that goes well beyond the legal question. The breadth and depth of our knowledge as legal counsel is enhanced by our faculty, administrator, and board experiences inside higher education.
We provide counsel that supports innovation by providing a ready understanding of applicable law, regulation, and guidance and balancing mindfulness of opportunity and potential risk. Our clients’ strategic and operational goals are always front and center, as is our deep understanding of the higher education sector and the applicable law.
In addition to understanding higher education law from the inside, our team understands higher education culture and that each institution’s culture is unique. We collaborate with clients to quickly become well-versed in each campus’s ethos and parlance to ensure a harmonized approach that honors the clients’ priorities and values and results in efficient communication, productive problem-solving, and constructive partnerships. It is not uncommon for our higher education clients to express their appreciation with: “You get us.”
As the regulatory web expands and intersects, we pay constant attention to compliance and risk management. We work closely with our clients to ensure that their policies and practices are up-to-date and defensible. When campuses are faced with serious issues requiring immediate action, we are available around the clock.
Even with strong risk management and litigation avoidance strategies, higher education institutions face the prospect of litigation. We are skilled in all types of litigation and agency investigations and are highly effective partners in all manner of litigation. When needed, our experienced litigators expertly evaluate claims, develop litigation and resolution strategies, and bring and defend against legal claims in court.
Countless matters and questions arise in higher education institutions that do not occur in other organizations. We understand these differences. Many matters demanding quick and comprehensive advice implicate multiple policies and multiple divisions. We know when and how to collaborate across functional areas. Numerous matters also require quick assessment of the applicability of myriad statutes as some require immediate action. We recognize the need for urgent, thorough analysis.
Set forth below are specific areas in which we work with our higher education clients and strive to provide responsive, tailored, cost-effective legal advice.
Complying with State and Federal Governmental Rules
Every office on campus must find time in the day and money in the budget to ensure compliance with the ever-expanding list of laws that put federal dollars and college resources at risk. These areas of regulation include:
- Affordable Care Act
- Clery Act
- Conflicts of interest
- Distance Education
- Employee Benefits and Executive Compensation
- Endowment Administration
- Employment and Discrimination
- Export Controls
- Form 990
- Grants Administration and Effort Reporting
- Higher Education Opportunity Act
- Internal Revenue Code
- Labor relations
- Land Use and Zoning
- Section 504
- Sexual Assault
- New York Not-for-Profit Corporation Law
- Student Financial Aid
- Title IX
Getting Business Done
Colleges and universities are not-for-profit entities, unique in some respects and typical in many others. Our legal services associated with non-profits include:
- Board Governance
- Bond and Other Financing
- Business Transactions
- Contract management
- Charitable Giving and Development
- Employment Agreements
- Food service and physical plant outsourcing agreements
- Intellectual property
- International Programs
- Pouring rights and sponsorship agreements
- Real Estate
- Technology Transfer
- Use of institutional facilities agreements
Responding to Crises and Managing High Profile Events
A simple event can become a crisis in the matter of minutes; an incident can be reported on social media before you know it has occurred. We work with clients 24/7 as they respond to critical campus incidents, with an eye toward identifying and mitigating the full range of risks and developing strategies to address a multitude of possible outcomes. Areas requiring this type of immediate attention include:
- Governmental investigations
- International programs
- Litigation and Litigation Management
- Minors on campus
- Missing Persons
- Security breaches
- Sexual assault
- Social Media
- Threats to safety
Navigating Other Areas Unique to Higher Education
There are countless matters and questions that arise in higher education institutions that simply don’t arise in other organizations. We have worked inside higher education and have deep understanding of these differences and because of this, we have perspectives that go well beyond just the legal question. Our work includes the following:
- Academic programs (creation, modification, and termination)
- Faculty tenure (promotion, tenure, nonrenewal)
- Faith-based institutions
- Licensure and accreditation
- Student academic and disciplinary proceedings
- Student Codes of Conduct and policies
- Student Organizations
- Residence Life
Improving Processes and Policies
Over the past decade(s) we have seen regulation of higher education explode, a trend every commentator expects to continue. We work with colleges on reviewing, refining, and developing policies that both support the institution’s mission and values and develop a framework for compliance. In addition, we work across divisions, departments, and with Boards of Trustees to evaluate the effectiveness of policies, ensure their consistent application, and identify areas for additional discussion and policy development. As compliance moves to the forefront of every role on campus, conversations regarding policy management systems are increasingly important. We are adept at facilitating and supporting these critical initiatives on college campuses.
- Review, refine, and develop policies that both support the institution’s mission and values and develop a framework for compliance
- Engage the campus community to ensure policies are effective, in keeping with campus values, and consistently applied
- Guide important decisions regarding policy management systems and facilitate and support the resulting critical campus initiatives
Developing Competencies Through Compliance Training
As highly regulated entities, institutions of higher education must ensure compliance to receive federal funds, manage risk, and avoid lawsuits and negative publicity. Targeted and pragmatic training focused on current law, policy, and guidance is the only method to ensure compliance with the myriad areas subject to governmental regulation. From “training the trainer” to direct delivery of content, we can help design programs meaningful to your campus. The breadth and depth of our knowledge as legal counsel is enhanced by our faculty, administrator, and board roles inside higher education. This knowledge base allows us to offer practical and highly cost-effective training programs in all areas relevant to higher education.
Complying with Title IX
Given the White House focus, the rapidly-evolving regulatory landscape, the national media attention, and the importance of preventing and addressing sexual assault on college campuses, we highlight our experience in Title IX below:
Our day-to-day Title IX experience includes:
- Developing Title IX-compliant policies and procedures
- Delivering policy compliance and responsible employee status training for faculty, administrators, staff, and students
- Overseeing the Title IX investigation process
- Conducting Title IX investigations (discussed in more detail below)
- Delivering “Trauma-Informed Title IX Investigations” training to internal and external investigators, student affairs staff, other campus first responders, and hearing panels
- Guiding students and parents through the investigation and complaint resolution process
- Facilitating discussions with faculty, staff, and students regarding community values and their reflection in institutional policies
- Serving as a resource to working groups of faculty, staff, and students studying and making recommendations regarding policies and protocols
- Developing resource guides and related materials for students related to confidential and non-confidential supports and resources available on- and off-campus
- Building internal and external relationships with on-campus and off-campus individuals and offices committed to combatting sexual violence, including off-campus law enforcement, SANE nurses, and rape crisis counselors
- Presenting at parent orientation sessions regarding Title IX
- Selecting and administering a sexual assault campus climate survey
Title IX Investigations
Timely, thorough, and legally compliant investigations are vital. Missteps can create liability, unwanted publicity, and controversy. Federal and state agencies can call into question your investigation practices and outcomes. Given our experience conducting investigations (or guiding our clients in doing so), we can quickly focus on the pertinent issues and develop an investigation strategy aimed at resolving the issue in an appropriate and effective manner.
Our approach to sexual misconduct investigations is to treat students equitably and with respect and sensitivity while remaining objective and neutral. Our professional yet personable style encourages parties and witnesses to help us obtain the most complete set of facts possible so the decision regarding responsibility is well-informed and defensible. Our investigation approach is grounded in our significant knowledge of Title IX and best practices in conducting trauma-informed Title IX investigations.
Our Title IX team shares your commitment to thorough, impartial, and compassionate investigations. Our Title IX investigations commence with analysis of the allegations to develop an investigation plan in consultation with the Title IX Coordinator and, if applicable, a co-investigator. We interview the parties and witnesses, identify and meet with others with potentially relevant information, collect documentary and electronic information, visit incident scenes as needed, and prepare interview summaries and investigative reports in keeping with each institution’s format and style. If called for by the institution’s policy, we make credibility determinations and a recommendation or determination as to whether sexual misconduct as defined in the policy has occurred. We advise all individuals with whom we meet about available resources and supports, the institution’s policy against retaliation, and make connections with and draw upon the institution’s support resources as called for in each case.