In the interest of full transparency, which always seems to be a good way to start an article, I must admit that I did not realize higher education law existed until after graduating law school and joining my firm. But, boy am I glad that it does, selfishly, because I so enjoy practicing it and, generally, because of its great importance. After all, colleges and universities serve increasingly critical roles in our society as the marketplace of ideas where, ideally, intellectual freedom leads to a robust exchange of ideas, study, and inquiry compelling the type of civil discourse that propels society forward. To hear the justices wax poetic on the societal importance of these institutions, check out the Supreme Court in Healy v. James, 408 U.S. 169, 180 (1972) or Keyishian v. Bd. of Regents of Univ. of State of N.Y., 385 U.S. 589, 603, (1967).
What Is Higher Education Law?
Higher education practice exists at the intersection of the law and life on campus. The legal issues facing colleges and universities are more challenging than ever, extending to every corner of campus life with increasing complexity. From discipline to drones, Title IX to taxes, the Family Educational Rights and Privacy Act of 1974 (FERPA) to financing, higher education legal issues abound. Higher education attorneys typically practice in one of two ways: either as in-house general counsel at a college or university or at an outside firm (such as mine) where college and university clients retain representation to assist with a myriad of legal issues.
What follows is a high-level overview of the types of work higher education attorneys may handle.
Safety, Risk Management, and High-Profile Crises
From underage drinking to sexual assault, colleges and universities face risks that can lead to government investigations, high-stakes litigation, uncomfortable questions from stakeholders, and unwanted publicity. Higher education attorneys defend institutions facing these significant problems. Attorneys may conduct proactive and reactive internal investigations related to these matters, including compliance with the Clery Act, student deaths, and hazing. Other types of legal services in this realm might include interpretation of regulatory questions and coordination of responses to major program reviews instituted by the Department of Education.
Discrimination, Harassment, and Sexual Violence
Higher education attorneys will often be responsible for advising colleges and universities in handling Title IX enforcement and litigation. Attorneys in this field also represent institutions in defense of civil lawsuits and investigations into allegations of violations of Title IX by the Office for Civil Rights for the US Department of Education. Beyond Title IX, higher education attorneys assist institutions with maintaining compliance with other federal and state laws prohibiting discrimination based on, for example, race, gender, sexual orientation, or gender identity.
First Amendment and Privacy Issues
Finding the balance between privacy concerns and First Amendment rights is an ongoing challenge for higher education institutions, especially as technology changes how records are stored and students and faculty communicate. Higher education attorneys offer counsel on compliance with key laws including FERPA and HIPAA, as well as records retention policies and schedules. Attorneys may also defend institutions on First Amendment, social media and related speech issues, and provide proactive advice to higher education marketing and communications staff, student reporters, and editors to reduce the risk of claims.
A Day in the Life
When people ask what I do, I will explain that about half of my higher education practice is reactive (defending schools in litigation and responding to government program reviews or investigations), while the other half is proactive (offering guidance to schools on various legal issues that arise on campus with an eye toward avoiding a situation requiring reactive representation). As a third-year associate, my role is often to support the higher education partners I work with in providing these services to our clients, though I find myself with ample opportunities for direct client interaction.
By way of (somewhat) specific example, a couple of matters I have worked on in the past few months include: assisting a university with its response to a Department of Education Office of Civil Rights Title IX review; working on an internal investigation for a client related to athletics; preparing a response to the state Department of Education related to a school’s administration of Title IV financial aid; advising an institution to ensure compliance with laws governing sexual orientation and gender identity discrimination; and handling various litigation involving hazing, sexual assault, and speech issues on campus. I enjoy my work because of the wide variety of legal issues I deal with, the types of people I get to work within the field both inside and outside my firm, and, very simply, my general belief in the importance of higher education. I certainly benefitted from higher education, and I value the opportunity I have every day to contribute to the life of colleges and universities.