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Higher Education

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Spencer Fane Higher Education attorneys help higher education institutions resolve the complex legal issues that are commonly found in the industry in a tailored fashion that guides them to success in their mission, goals, and interests. In this environment we have worked closely with CEO’s, Athletic Directors, and General Counsel.

We have represented dozens of institutions of higher education, nonprofit organizations and related governance organizations, including the NCAA and a Division I athletic conference. Spencer Fane attorneys have provided universities with a wide range of counsel including governance, policies and procedures, and major litigation. We have acted as outside investigators and advisors in high profile cases at large institutions and have helped many smaller institutions deal with similar issues through assisting existing administrators and staff. We have helped universities protect their investments by assisting with transactional issues such as vendor and employment contracts, intercollegiate sports contracts and intellectual property protection. Spencer Fane is a full-service firm that has also served as outside general counsel for universities without in-house staffs.

Members of the Higher Education team have helped institutions of higher learning with the following legal issues:

Title IX

  • Acted as outside counsel to investigate institutional responses to sexual assault cases at major Division I universities
  • Assisted institutions with Title IX complaint issues and acted as external Title IX investigators and review panel members for major Division I universities
  • Led an extensive investigation for a post-secondary institution regarding all known responses to allegations of sexual assault or abuse occurring during an 80-year time period
  • Conducted audits to determine institutional compliance with equal participation and equal benefits requirements of Title IX

Regulatory and Accreditation

  • Advised institutions in matters involving regional and professional accreditation process and compliance
  • Assisted in development of educational programs and establishment of schools in other countries in cooperation with foreign educational organizations
  • Provided counsel regarding federal and state education laws, including the Family Educational Rights and Privacy Act (FERPA) and the Individuals with Disabilities Education Act (IDEA), Section 504
  • Advised educational institutions regarding responding to OCR and other governmental agency investigations

Athletics

  • Litigated major sports cases involving NCAA status and defended institutional interests in NCAA investigations
  • Advised institutions and individuals in matters involving NCAA compliance and athlete eligibility
  • Assisted institutions in issues surrounding coaches’ and other senior athletic leadership’s contracts
  • Designed tax-efficient and creative fundraising incentives
  • Obtained financing for operations and capital improvements

Governance

  • Assisted in the updating of institutional best practices at all levels, including board policies, internal procedures and other governance issues and general operational policies and procedures
  • Counseled institutions on achieving board diversity
  • Advised institutions on implementation of more effective shared governance systems
  • Assisted client institutions with crisis management arising out of institutional challenges

Business and Finance

  • Helped design tax-efficient and creative fundraising initiatives
  • Assisted in obtaining both tax exempt and taxable financing for operation and capital improvements
  • Advised institutions on financial restructuring, including refinancing both bonded indebtedness and other obligations
  • Worked with colleges and universities to review and document all forms of business transactions, including faculty contracts, vendor contracts, student agreements and distance education agreements
  • Have conducted operations and finance audits of universities
  • Advised institutions on administrative structural options to maximize efficiencies and cost savings
  • Assisted administrations to create new revenue streams that support the institution’s core mission while generating non-traditional income

Charitable Giving and Endowment Management

  • We establish and maintain the tax-exempt status of university foundations, advise on the deductibility of charitable contributions, create charitable giving plans, advise on board governance issues, develop policies and corporate compliance programs, and provide advice on employment laws as they apply to nonprofit organizations
  • Through our Charitable Giving practice, we guide clients through state charitable solicitation laws and the application of federal and state securities and insurance laws to deferred giving vehicles. This work includes charitable gift annuities, charitable remainder trusts, and pooled income funds, including compliance with the Federal Philanthropy Protection Act of 1995. We have been extensively involved in the establishment and ongoing maintenance of direct and deferred giving programs, charitable remainder unitrusts and annuity trusts, pooled income funds, charitable gift annuities, endowments and donor advised funds, and with the regulatory and statutory compliance issues that affect deferred giving. We monitor our clients’ interests in probate estates and trusts and provide advice on the establishment and maintenance of revocable and irrevocable trusts.
  • We have advised institutions regarding maximum flexibility in the classification of endowments in a manner that achieves the donor’s intent, while granting the institution operational flexibility

Intellectual Property

  • We provide a wide range of services for clients, including patents, trademarks, software licensing, joint development, and manufacturing agreements
  • We provide training to clients with large volumes of copyright registrations, enabling cost-effective registration programs and efficient administration of what today is increasingly a difficult complex body of property
  • We have represented clients before the Federal Trade Commission to halt the import of infringing goods, and we have both prosecuted and defended infringement and unfair competition claims
  • Spencer Fane maintains thousands of trademarks in more than 50 countries, and has successfully prosecuted electrical, mechanical, medical device, chemical, biological, software-related, and business method patents around the world
  • We assist clients with ownership issues presented by government funded research, the transactional acquisition of patents and trademarks and provide due diligence on behalf of sellers and buyers

Labor and Employment

  • Managed and defended labor and employment issues
  • Assisted in development of incentive compensation programs (including enrollment-based incentives compliant with financial aid guidelines)
  • Negotiated and documented faculty contracts
  • Helped institutions in the preparation and revision of faculty, staff, and student handbooks
  • Assisted institutions in responding to labor organizing campaigns

Cyber Security and Data Privacy

  • Using our experience with HIPAA, HITECH, Gramm-Leach Bliley, FDIC Guidance, PCI-DSS, EU GDPR, and state data laws, we are able to identify the legal requirements applicable to an organization’s use, disclosure, and safeguarding of personal information.
  • We develop policies and procedures, contractual terms, training programs, and security strategies to manage data consistent with the organization’s risk structure.
  • Our attorneys provide the necessary support to survive security breaches when they does occur, including evaluation of cyber-insurance policies, development of incident response plans, analysis of breach notification requirements, management of notification obligations, and resolution of resulting regulatory investigations or litigation

Internal Investigations and Crisis Management

  • Conducted independent investigations for institutions in relation to compliance, financial management, and student and employee conduct
  • The team assists clients by directing investigations, reviewing and developing policies, and providing prevention-based training and education. This includes:
    • Auditing organizational policies and processes pertaining to regulations governing conduct and best practices
    • Developing systems, processes, and training to help organizations achieve best practices and maintain regulatory compliance
    • Providing training and education related to sexual misconduct
  • We also provide assistance to institutions in coordinating and collaborating with legal or government entities conducting investigations
  • We have advised organizations on an ongoing basis regarding compliance and current best practices