What is Higher Education Law?
Higher education law encompasses the nuances of this expansive area, and this field is especially complex because it stands on the border of multiple legal specialties, which informs its breadth and depth of influence. The objective of higher education law is to serve the interests of students, institutions, faculty members, and larger public policy goals. The intersections between each of these entities often requires the intervention of a legal professional who can deftly navigate the sometimes conflicting needs of the various parties.
It is the skill and expertise of higher education law firms that allow them to identify know the differences between employment and labor law, for example, to help teach clients the best practices to avoid claims, and defend clients when their policies are challenged. The basic consideration in most higher education law cases is that the institution must abide by a number of policies and regulations that govern and constrain its actions. These regulations are often legislative in nature , but can also often be rooted in constitutional case law. The most common areas of higher education law that institutions rely upon counsel for guidance on are: complying with federal regulations, employment policies and procedures, student rights, disputes, governance, and compliance.
Federal regulations for higher education are voluminous, and range from cost-benefit analysis of grant-funded research projects, to campus safety, copyright infringement, and academic freedom. Because these legal standards are so strict, institutions need to know how to advise their faculty and administrative staff. Therefore, knowing the scope of federal regulations is paramount, and institutions must have the ability to access this information from a knowledgeable source. A higher education law firm understands the relevant regulations, and advises their clients in incorporating these regulations into an operational framework. This is perhaps the most complex subject in higher education law, due to the fact that the regulations do not always fit together into a clear model.
What Services Do Higher Education Law Firms Provide?
The services offered by higher education law firms are diverse and tailored to meet the specific needs of academic institutions. These firms typically offer legal compliance services that help colleges and universities adhere to federal and state laws, regulations, and accreditation standards. Such compliance services cover areas like Title IX, the Family Educational Rights and Privacy Act (FERPA), the Clery Act, the Americans with Disabilities Act (ADA), and other laws governing educational institutions.
In addition to compliance, higher education law firms provide litigation support, acting as counsel for institutions in defense of lawsuits brought by students, faculty, and staff. This includes protecting the rights of the accused in disciplinary matters, and guiding institutions through the intricacies of administrative and Supreme Court litigation. Effective litigation strategy requires not only an understanding of the law but also an appreciation of the unique environment of higher education.
Policy and contract development is another critical area in which these law firms assist. They draft and revise student handbooks, faculty contracts, and employment agreements to ensure that the institution’s policies are fair and legally compliant. This preventive work helps to minimize legal disputes.
Many of these law firms also offer training services for faculty, staff, and administrators on various topics, ranging from best practices in handling student misconduct to navigating the complexities of faculty evaluations. Additionally, specialized services may be provided, such as international education advice, labor relations guidance, and development of risk management strategies that are specific to institutions of higher learning.
How to Select a Law Firm for Your College or University
When faced with the decision to enlist the services of a law firm, an educational institution should carefully evaluate the expertise, reputation, and cost of the firm in relation to its legal needs. One of the first considerations should be whether the law firm has experience in the education sector and is aware of the various compliance issues. Institutional needs may vary depending on the size of the institution and the number and types of programs offered, but common topics of inquiry may include interpretation of regulations to determine applicability, developing institutional policy and procedures, student grievance and discipline, litigation support, real estate transactions, and employment matters. When institutions have a niche, such as religiously affiliated schools, many law firms have developed certain specializations. For example, some firms might focus on Title IX compliance or immigration issues for employees. In addition, the education field may require extensive litigation practice in certain states. Institutions should ask law firms whether they have worked in litigation venues with which the institution is likely to become familiar.
Current Issues in Higher Education Law
From the Supreme Court siding with the University of Texas (Austin) on affirmative action admission policies to the new Title IX regulations addressing sexual harassment, discrimination, and sexual violence, the last few years have already been an eventful time for higher education law firms and their college clients. For higher education, the current decade has marked an array of unprecedented legal trends and the effects are felt at all educational levels. Here are some of the most common trends in higher education law:
Yearly Changes to Title IX
Title IX is a federal law that prohibits discrimination on the basis of sex in federally funded educational institutions. There was a lot of confusion regarding the Obama administration’s interpretation of the law, but we’ve seen clarity under the Trump administration and a reaffirmation of the law’s current mandates. The latest changes, which were published in the Federal Register on May 19th and took effect on August 14th, 2020, provide greater flexibility for investigatory processes , require live hearings, and protects due process for the accused, among other things.
Changes to the Federal Family Educational Rights and Privacy Act
Also passing largely unnoticed is the Electronic Announcement on November 30, 2018, from the Department of Education, which finalized the revision of regulations implementing the Family Educational Rights and Privacy Act. Institutions must comply by August 14, 2019.
New DOE Requirements
The US Department of Education published new regulations on November 29, 2019 that applies to Title IX complaints of sexual harassment, including those involving assault. The new guidance will impact procedures and responsibilities imposed on colleges. The new regulations went into effect on August 14, 2020.
Student Loan Issues
The CARES Act, which was passed on March 27, 2020 in response to the COVID-19 pandemic, suspended loan payments through September 30, 2020, however it also pushed back borrower responsibilities to restart loan payments 240 days after the month of payment is pushed back.
Case Studies: When a University Called on the Lawyers
A prominent public university was facing a significant financial insolvency that threatened its ability to remain operational. Our higher education law firm strategy focused on the development of a comprehensive restructuring solution, including a potential merger with another institution, while concurrently initiating discussions with the Department of Education. Coordinated with a multi-faceted marketing plan, we worked closely with the Department to develop a six month exit strategy negotiated program with which the Department was comfortable and which allowed the University to be acquired by a solvent institution in good standing. Concurrently with this undertaking, we have worked extensively with the University’s bond Trustees and investment bankers resulting in a refinancing and structuring of its existing debt that removed the majority of its continuing covenants while generating new liquidity and refinancing existing debt. Without the EB5 funds, the University would have been very subject to closure due to lack of continued financial viability due to financial insolvency.
A private university also faced a financial crisis and was apprehensive of the same fate as the public institution above; however, the private institution did not have the luxury of time and needed a timely solution. The restructuring of the aforementioned public institution as noted above was offered to the private institution which was also implemented over a very tight schedule with the Department and Department agreements were concurrently reached. We also worked with its trustee and investment banker in remaking its existing indentures providing them liquidity and more favorable debt terms and covenants. Without the EB5 funds, the private university could have gone out of business or been forced to close.
Frequently Asked Questions about Higher Education Legal Services
What are the common fees associated with higher education legal services? Fees may vary depending on the complexity of the services provided. Common fee structures include hourly rates, flat fees for specific services, retainer agreements, and contingency fee arrangements. How does a legal advisor approach consultation with an educational institution? Initially, the advisor will review relevant institutional policies and examine the situation at hand in order to understand the issues involved and develop a strategy. They will then meet with key personnel to provide guidance regarding policy concerns , legal implications of specific actions, and overall institutional best practices. In what scenarios would an institution benefit from ongoing legal advisory services? Institutions may benefit particularly in the areas of policy development, managing legal issues arising from labor relations or student affairs, compliance with federal legal requirements, and risk management concerns.