Guiding Your Institution Through Legal Challenges: A Guide to Finding the Right Higher Education Law Firm
All About Higher Education Law
The legal underpinnings of higher education are intricate and nuanced, playing a pivotal role in the academic landscape. A grasp of the foundational aspects of high ed law is essential for institutions seeking to operate within, and in accordance with, the legal framework that regulates their actions and activities.
Higher education law encompasses a wide spectrum of legal areas, each with its own unique impact on how an institution can conduct business. For instance, schools must adhere to a complex set of regulatory compliance requirements, which dictate everything from reporting obligations to regulatory enforcement. Higher ed compliance, as it stands, is a multifaceted undertaking that places a great deal of the burden on institutions.
Additionally , universities must not only seek to maintain their status as trusted resources in the world of education – they must also adhere to affirmation standards set forth by accrediting agencies, either regional or national. Accreditation has far-reaching implications for your institution’s standing and status, making it necessary that you meet the requirements put forth by accrediting bodies.
Finally, higher ed law addresses the creation and implementation of policies and practices that govern the rights, freedoms, and protections afforded to students. These policies range from admissions to grievance procedures, and institutions are required to establish and sufficiently convey these rules to ensure they are upheld.
Typical Issues and Lawsuits in Higher Education
Every higher education institution faces legal challenges that require them to have a trusted partner by their side. From public institutions, private colleges and universities, community colleges, non-profit colleges and universities, and for-profit institutions, they all encounter the unpleasant experience of dealing with legal troubles. Some of the most common legal issues facing higher education institutions that may require the hiring of a general counsel include:
TITLE IX
The Department of Education’s Title IX regulations cover everything from athletics to admissions to sexual harassment and violence. Furthermore, the Office of Civil Rights’ "Dear Colleague Letter" and other guidance letters send schools in every state into a flurry of activity to comply. Colleges have to make sure they are Title IX compliant with every federal regulation and court case ruling that might impact them.
EMPLOYMENT LAW
Higher education institutions need to be prepared to navigate all types of employment law matters. Everything from the hiring process and negotiations with candidates for faculty and administrative positions to discipline and termination of employees to labor relations and the unionization of faculty or staff could lead to legal problems.
INTELLECTUAL PROPERTY
Colleges and universities regularly encounter intellectual property matters. IP issues can be related to faculty and research teams, commercialization, grant management and compliance, patent application, protection, and litigation.
What Does a Higher Education Law Firm Do for You?
Dedicated higher education law firms are uniquely positioned to provide tailored guidance and insight that directly address the challenges faced by colleges and universities at all stages in their development. Strategic advice on real estate transactions, employment agreements, affiliation arrangements or the many other complicated matters facing higher education institutions in a constantly evolving legal environment can prove invaluable to institutional leaders and boards alike.
Rather than engaging attorneys with a wide array of clients not tailored to the ad hoc needs of higher education institutions, an experienced higher education law firm should boast a depth of experience specifically relevant to the areas and subjects of interest to the strategic decision makers at a college or university. Further, the attorney team should be well versed in the workings of colleges and universities to provide insight into the motivations and challenges facing other institutions given the strategic interest at hand. Specific regulatory and compliance challenges of academic institutions should also be well understood.
Given the speed of change, laws and regulations are constantly updated. Strategic legal guidance from someone who is not just knowledgeable but has hands-on experience with higher education legal issues should be preferred to those who are not as deeply experienced in the space. Such a firm should be well connected to other higher education professionals such as auditors, search firms, lenders, and other potential partners or advisors.
Selecting a Higher Education Law Firm
When considering a law firm with higher education expertise, there are multiple factors that are relevant. Some of them are obvious: Is the firm experienced in handling cases such as yours? Does it have a proven track record for handling cases of your size and complexity? Other factors require more subtlety in most cases. Here are a few of the more nuanced factors to consider:
- Approach to education-related legal issues. Different law firms have different approaches to representing clients. Some are more hands-on while others take a more minimalist approach. Some prefer a more collaborative process with their clients, while others are more independent. In considering these different approaches, think about what style or result best suits your situation.
- Client base. While client bases are not exhaustive, they do provide useful insight into a firm’s experience level. Partners at larger firms often develop a primary specialization over time, so it is common to see students hired by large firms developing particular specialties within the law school program. Mid-tier firms tend to develop significant strengths in certain areas based on their client base. Understanding certain areas in which a firm has a particular specialty can be useful in identifying which firms to hire to handle your case.
- Size of the firm. Smaller size practices will tend to be more hands-on in the case. A practice with only a few attorneys dedicated to a particular area of study will tend to be more flexible, allowing for more individualized attention. An attorney-client relationship will be developed throughout the case, allowing for an attorney with more familiarity with your case to step in as needed.
- Availability. While some attorneys have offered a 24/7 availability to their clients, this is hardly realistic. There needs to be a balance struck between attorney availability and the cost of unlimited legal services, which tends to be on the higher end. When weighing your options, it is best to consider your personal preferences on availability and apply that to the cost of that availability. Is 24/7 availability truly realistic? Does it make sense to pay for guaranteed availability?
Pros of Engaging Higher Education Legal Counsel
For those uninitiated in the idiosyncratic perils and challenges of the higher education field, the journey to finding the right legal counsel can be a maddeningly reassuring experience. What worked for some other university, or what is supposedly standard for an university, often falls well short of addressing the full range of unique attributes of a particular institution. Even those who do have working relationships with law firms that have some degree of experience with other colleges and universities may find their institutions struggling to find a law firm that has any substantial experience with their specific settings and challenges. The vast majority of law firms — even those who are well-intentioned — have little idea what it takes to address all of the issues that a college or university may confront. Higher education institutions are often all-too-inviting targets for litigation and other risks , and they quickly learn that those with two- or three-hatted law firms on call may suddenly find those law firms stretched far too thin. What may have been a useful resource for the health law practice or the environmental law practice or the employment law practice suddenly becomes unavailable when the docket is full. The most important take-away when you are looking for legal counsel is to ensure that the firm has consistent depth and breadth in its higher education practice. It is not enough to find a firm that claims to specialize in higher education only to find yourself channeled off to an employment lawyer. Or worse yet, a small firm that either has little knowledge or experience in areas of law other than one or two narrow specialties, leaving the institution to hunt for counsel proficient in the remaining practice areas. By seeking a law firm that has consistently devoted its practice to higher education over a range of issues, you will have the best opportunity to find those counsel who are not only knowledgeable and experienced, but also committed to higher education legal practice.
Current Trends in Higher Education Law
Several higher education legal trends have emerged in recent years that impact how colleges and universities are handling student interactions, litigation, governance, and, increasingly, privacy.
Digital Privacy. Digital privacy has become a significant issue for many higher education institutions. Institutions need a firm that is well-versed in data privacy laws and regulations to advise on policies and to represent them in lawsuits. A breach in privacy or the misuse of digital information can be detrimental to an institution’s reputation, and institutions must be prepared for the consequences should such a breach occur.
Title IX Lawsuits. There has been significant focus on civil lawsuits related to Title IX in the wake of new regulations and guidance issued by the Department of Education in 2017. Title IX claims are challenged both administratively and in court, often by disgruntled students. Understanding the complex web of regulations can be difficult, and there are now more avenues than ever for Title IX claims to be heard both by the courts and the Department of Education. Failing to take these new regulations into account could mean significant liability for institutions, and they need legal counsel who understands the nuances of Title IX to protect their interests.
Student Injuries and Violence. Recent episodes of violence contribute to a growing concern for the safety of students and employees on campus and in college-operated housing. These incidents have led many institutions to stress the importance of student education on prevention of a variety of crimes. In addition, institutions have become increasingly concerned with the risk of injury to students on campus and in college-owned housing. Institutions need counsel who can advise both strategically and preventively on issues related to safety and liability for these incidents.
Summary: Safeguarding Your Institution
This is an indispensable step in the right direction – select a law firm that will help you to navigate the increasing legal complexity and obligation of running an institution of higher learning. When you partner with a legal team that understands the ins-and-outs of all these regulations, many of which are unique to your institution but fall within the boundaries of a larger system, you take the serious steps needed to ensure that your college or university is compliant at the state and federal levels in addition to having the resources needed to handle any potential lawsuits in an efficient and effective manner . A law firm that specializes in a full range of collegiate legal services will provide your employees with the confidence that their best interests are protected and that you, as the institution, are doing everything possible to ensure workplace, financial, and institutional safety and integrity.