ArentFox Schiff proudly serves as counsel to colleges and universities across the United States, including large research universities, small liberal arts colleges, public and private institutions, technical colleges, and community colleges. We understand the challenges they face and are well-positioned to assist in addressing them.
Institutions of higher education look to ArentFox Schiff across a range of critical areas: construction agreements and disputes; faculty, union, and workforce management; board governance; financing and bonds; endowment management and donor agreements; vendor and event contracts; data security and privacy; internal investigations; and Title IX support and federal government relations; in addition to other areas that frequently arise for these clients, such as eLearning, ERISA, export controls and sanctions, government contracts, insurance, national security, real estate, sports, accreditation, antitrust, and immigration.
How We Help
We frequently advise on the management and administration of institutional endowments, as well as the establishment of new endowment programs. Our team understands the legal and investment challenges faced by academic institutions, particularly in today’s difficult economic environment. We counsel clients on issues that include fund governance and control, creditor protection, use restrictions, accounting and compliance matters, and the Uniform Prudent Management of Institutional Funds Act. We also have substantial experience with naming opportunities, endowed scholarships, and negotiated gift agreements.
Planned Giving, Fundraising, and Legacy Planning
Our team has extensive experience advising on planned-giving structures, legacy planning, trust and estate administration, and the formation and administration of both public and private charitable entities. We provide counsel on fundraising activities, initiatives, and goals, and assist with matters like charitable games (e.g. raffle, bingo); state registration for solicitation; acknowledgment of gifts, gift acceptance policies, corporate sponsorships, special events, major gift programs, endowed scholarships, and grant structuring and compliance; and enforcement of charitable pledges and bequest agreements. We leverage our tax, nonprofit, and estate planning experience to aid donors and donee institutions alike in achieving their goals effectively and efficiently.
The higher education sector frequently interacts with government entities. From the US Department of Education to Capitol Hill to a local town zoning board that must approve a building construction project, colleges and universities sometimes need sophisticated guidance on strategic advocacy, lobbying, and other engagement. ArentFox Schiff professionals have decades of experience working on higher education issues both in public service and in the private sector. Our firm couples our substantive knowledge with our extensive relationships in the government, leveraging a bipartisan roster that includes two former US Senators, a former Member of the US House of Representatives, former senior staffers from Congress, a City Councilman, and former state and local leaders.
Bonds and Financing
The higher education sector has complex borrowing needs. Nonprofit institutions often rely on sophisticated debt strategies to allow them to fulfill their missions, including financings for large-scale building projects, all at a lower cost by being financed on a tax-exempt basis. Our team has extensive experience in bonds, and loan, mortgage, equipment, and off-balance sheet financings as well as related critical tax experience. We work closely with relevant administrators to ensure that benefits and risks of complex financings are fully considered.
Construction Agreements and Disputes
Buildings and renovations are some of the most financially significant projects that colleges undertake. They also carry risks of timing, cost, and liability. ArentFox Schiff has deep experience in construction law, understanding all sides: owners, contractors, subcontractors, suppliers, architects, and engineers. We can help ensure that your school’s construction contracts are carefully drafted and thoughtfully negotiated. In the unfortunate event that a dispute arises, we’ll be ready to assist, whether the dispute is resolved through negotiation, mediation, arbitration, or litigation. Additionally, our team can help navigate challenges related to state and local municipal law, zoning law, and other building requirements such as LEED certification and sustainable buildings.
Lawsuits, Claims, Investigations, and Subpoenas
Our litigation team has extensive experience handling all manners of disputes. Whether it is only a potential claim requiring delicate negotiation, or whether it is a lawsuit requiring a hard-fought trial, we have a deep bench of expertise. We are particularly adept at helping clients analyze litigation strategies with a specific focus on nonprofits. Our teams have won verdicts for local, national, and international clients in trials and appellate courts throughout the country, including the United States Supreme Court. We also handle internal investigations and governance disputes, and have represented nonprofits on disclosure issues around civil enforcement and regulatory investigations, and litigation. Our team has significant experience conducting investigations and advising clients on disclosure to, and negotiations with, the government regarding regulatory noncompliance. We have represented myriad clients in investigations by Inspectors General and US Attorneys’ Offices. From time to time, tax-exempt nonprofit organizations may also need to report certain types of transactions to the IRS. We help organizations comply with those reporting obligations and develop processes and procedures to help mitigate the risk of future occurrences. We also guide organizations through IRS audits and controversies if and when they do arise.
Colleges and universities enter into countless contracts with external vendors, suppliers, and service providers. The process for managing and negotiating those contracts is often decentralized. We assist institutions in managing their contracts. We also have extensive experience drafting and negotiating contracts with vendors, service providers, conference facilities and hotels, office leases, student and alumni management systems, fundraisers, advertisers, and paid and unpaid speakers, as well as agreements with federal, state, and local government agencies. Additionally, we can assist in developing contractual templates that individual campus offices can modify as needed for ease of administration and lowering costs.
Faculty, Union, and Workforce Management
ArentFox Schiff is a national leader in labor and employment law. We understand the particular employment dynamics on college campuses, such as faculty tenure, campus unions, and student employment. Our team can help ensure that your school’s employment agreements and union contracts are carefully drafted and negotiated in keeping with the institution’s broader interests. We can also work to resolve highly sensitive and confidential employee disputes, grievances, and other situations. In addition, we have extensive experience handling a wide array of immigration-related issues for higher education institutions, including obtaining work visas and green cards for faculty, scholars, and administrative staff; assisting students with immigration options after graduation; assisting with SEVIS, I-9, and E-Verify compliance; and assisting with arrangements with foreign institutions and governments for the exchange of scholars, faculty, and students.
Intellectual Property Policies and Protections
Colleges and universities are engaged in cutting-edge research. ArentFox Schiff has invaluable experience in intellectual property law, helping your institution to negotiate and maintain policies governing patent ownership, licensing, and other forms of IP management. Additionally, colleges and universities have valuable trademarks, such as mascots, logos, wordmarks, websites, and other indicators requiring brand protection in the marketplace. Our team assists with trademark registration and enforcement. We conduct trademark availability searches and register trademarks for nonprofit clients in the United States Patent and Trademark Office.
Governance Best Practices
Colleges and universities have complex, and often intricate, methods for making institutional decisions among many stakeholders. These include administrators, faculty, students, unions, trustees, and sometimes state and local government entities. We advise colleges and universities on handling these governance matters, which includes reviewing bylaws and governance policies, developing governance objectives, and promoting best practices. We have helped boards and staff successfully defend against claims involving their oversight of the institution, and we are adept at identifying opportunities to help leadership build consensus around improved, strategic governance operations. We regularly advise boards on their oversight activities and their policies governing board processes, management of conflicts, executive reviews and compensation, risk mitigation, and Diversity, Equity, and Inclusion (DEI).
Many colleges and universities are regulated under the Internal Revenue Code as Section 501(c)(3) organizations or have affiliated organizations that are Section 501(c)(3) organizations. Section 501(c)(3) organizations are subject to a complex regulatory regime that informs a wide variety of activities of colleges and universities including financing on a tax-exempt basis. Our tax attorneys have significant experience advising organizations on matters such as executive compensation and the avoidance of intermediate sanctions, unrelated business income tax, political activities on campus, forming and working with for-profit and nonprofit affiliates, and other matters that can impact an organization’s tax-exempt status or result in excise tax penalties. Our attorneys help colleges and universities structure their activities to help mitigate these risks.
Unrelated Business Income Tax
Colleges and universities often engage in a wide variety of revenue-generating activities that could potentially subject them to unrelated business income tax (UBIT). From corporate sponsorships to bookstores to restaurants on campus, our tax attorneys have significant experience helping cultural institutions structure their activities to help minimize their potential UBIT exposure.
Colleges and universities face a seemingly endless array of compliance requirements. These include tax filings, loan and tax-exempt bond compliance, charity registration, public disclosures, rankings reporting, accounting and auditing, and other governmental filings. We help institutions navigate this terrain and establish initial compliance processes to make it less time-intensive and less costly in the long run.
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