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Higher Education

LEADERSHIP: Michael E. Baughman and Amy C. Foerster

Pepper Hamilton’s Higher Education Practice Group helps educational institutions navigate their most complex legal issues across campus.

Institutions of higher education empower students to become critical thinkers and lifelong learners; support scholarship, research and technology development for the betterment of our global society; and encourage their community members to exchange, consider and test diverse perspectives. They do this important work within the challenging context of evolving financial, competitive and oversight realities that are straining academia broadly. Pepper Hamilton’s lawyers understand both the mission and business of our higher education clients.

Colleges and universities are microcosms of society, inhabiting a complex legal space given the depth and breadth of their operations. Their purview spans everything from student affairs to tax, employment to intellectual property, major gifts to facility construction, and countless areas in between. With more than 425 attorneys and 14 offices throughout the country, Pepper Hamilton is well-positioned to help colleges and universities with the myriad legal and compliance issues they encounter on a daily basis. The attorneys in Pepper’s Higher Education Practice Group also represent private elementary and secondary schools as they navigate many of the same issues, tailoring our services to the unique needs of the precollege environment.

At the core of our higher education practice are attorneys who have served as chief legal advisors for colleges, universities and private K-12 schools. We value the opportunity to be true partners with, and resources for, educational institutions in their day-to-day operations. We know the issues that impact our clients because we have been there.

Our general counseling services include both helping our clients solve challenging issues as they arise, as well as implementing policy and process improvements to be better prepared for — or altogether avoid — those situations in the future. We provide advice in areas central to educational institutions, including student affairs (disciplinary processes, Title IX and hazing), athletics, faculty discipline, shared governance (AAUP regulations and policies), campus safety (Clery Act and sworn/unsworn officers), and risk management and compliance, among others. At the same time, we strategically leverage the breadth of our firm’s practices to assist our clients in the areas below, specifically within the context of higher education.

Litigation, Federal Agency Claims and Internal Investigations

The nature of litigation involving colleges and universities is as diverse as their underlying operations. Pepper has a long history of representing education clients in court and administrative litigation of all types, whether involving students, faculty, staff, donors, vendors or federal and state regulators, including the U.S. Departments of Education, Justice and Labor. We also provide comprehensive counseling before the claim or complaint is filed to help place our clients in the strongest position possible when litigation cannot be avoided.

Particularly sensitive situations may call for institutions to seek the assistance of outside counsel to conduct an internal investigation. Pepper’s attorneys undertake these efforts on behalf of our education clients in matters involving allegations of sexual misconduct, discrimination, hazing, research or other academic misconduct, financial improprieties, violations of federal and state law, and more — working closely with board committees and senior institutional administrators. We also support our clients when they wish to undertake a policy and practice review preemptively, before the need for an investigation arises.

Labor and Employment

Colleges and universities often are among the largest employers in their areas, requiring a strong relationship between the human resources and legal professionals serving the institution. Pepper attorneys advise education clients on labor and employment matters across the spectrum, including compliance with state and federal employment laws, policy development, faculty handbook and tenure processes, executive compensation and benefits, and collective bargaining/organizing campaigns. We routinely represent our higher education clients in employment litigation and in connection with charges before state and federal administrative agencies, but also advise them throughout the employment lifecycle in an effort to avoid claims.

Intellectual Property and Entrepreneurship

At many colleges and universities, faculty, academic staff and students engage in research that generates intellectual property, triggering the need to determine whether the institution will seek protection. Pepper attorneys advise higher education clients on every aspect of moving intellectual property from the lab to the marketplace, including invention assessment, patent prosecution, and technology transfer/licensing. We also counsel colleges and universities regarding the copyright, trademark and other intellectual property issues that arise on campus.

The entrepreneurial spirit prevalent in higher education often leads faculty and students to form and grow independent business entities. For these clients, Pepper’s program for Startup and Early-Stage Entrepreneurial Development — Pepper SEED™ — combines the resources of our experienced, multidisciplinary team into an affordable package for startups and early-stage companies, providing a full suite of essential basic corporate documents, legal counseling, and mentoring in areas such as board development and management, business plan review and investor relations.

Board Governance

Given their fiduciary role, it is imperative that college and university boards establish and follow strong governance policies and procedures, and that board members receive appropriate training on topics important in higher education so they can effectively carry out their governance responsibilities. From bylaws to conflicts of interest to board education, Pepper works with higher education clients to ensure their boards are equipped to fulfill their fiduciary role.

Real Estate, Construction and the Environment

Whether building a new residence hall through a P3, negotiating contracts for the renovation of an academic lab building or exploring the installation of a solar array, Pepper’s construction, real estate, and environment and energy teams help colleges and universities navigate the myriad issues involved with these significant campus endeavors. From project conception through completion, we work with our education clients to understand and achieve their goals.

Finance, Tax and Advancement

While education is their mission, the fact remains that colleges and universities are complex financial organizations. Pepper’s lawyers provide advice to colleges and universities on the broad spectrum of tax, endowment and other financial matters impacting their operations, including with regard to the ever-changing compliance landscape. Understanding the work of college and university advancement offices, and the challenges they face in securing philanthropic dollars for their institutions’ futures, we also advise clients as they prepare gift agreements, negotiate naming rights and explore emerging fundraising opportunities.

Data Security

Colleges and universities are responsible for collecting and maintaining a daunting amount of protected data regarding their employees, students, alumni, research subjects and countless others. Pepper’s lawyers help higher education clients stay abreast of important developments in the evolving area of data security compliance, developing appropriate policies in this area and, when the need arises, assisting them in response to a data breach.

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