EDUCATION PRACTICE GROUP

Nutter is a full-service law firm that regularly represents colleges, universities, and secondary academic institutions on an extensive range of issues.  The firm acts as general or special counsel to several institutions of higher education in New England.  We have assembled a multi-disciplinary team of lawyers from several practice areas to address the growing and changing needs of clients within the education field,  both regionally and nationally. 

Our services include:
Charitable and Planned Giving
Campus Security and Police
Student Relations, Dismissal and Discipline
Employee Relations, Tenure and Discharge
Collective Bargaining
Institutional Financing
Tax-Exempt Status
Intellectual Property (need to include Trademark)
Litigation
Land Use, Real Estate and Zoning
Environmental and Insurance
Antitrust

Charitable and Planned Giving

To assist academic institutions with their development and planned giving programs, including preparing for major capital campaigns, we:

• Present educational seminars to development staffs
• Provide standard documents for instruments such as charitable remainder trusts, charitable lead trusts and gift annuities
• Review promotional literature
• Help negotiate complex gifts, including gifts of office buildings, stock in closely-held companies, restricted stock, and works of art
• Advise on the use and investment of endowment funds
• Assist in establishing endowed chairs
• Review articles of incorporation and by-laws to ensure that they do not create technical constraints on fundraising initiatives

Campus Security and Police

We provide legal advice and assistance to academic institutions on all issues involving campus security and campus police, including:

• Collective bargaining obligations
• Grievance arbitrations
• Employee discipline
• Tort liability for third parties on campuses
• Tort and contract liability for acts of students and employees
• Proper levels of equipment, including issues of arming campus security officers
• Campus security audits and advice on issues such as "duty of care," administrative responsibility and liability, access to grounds and buildings, suggested practices, community security procedures, grounds maintenance, and training for campus police and other security personnel
• The Compliance with Campus Crime Awareness Act 
• Agreements with non-campus police forces
• Indemnification of academic institution employees, officers, administrators, and trustees
• Defense of the academic institution and its officers in litigation involving claimed civil rights violations

Student Relations, Dismissal and Discipline

We advise academic institutions on a wide range of issues relating to the relationships between institutions and their students, and the legal issues related thereto, including the following: 

• Title IX review of athletic programs 
• Representation in Office for Civil Rights complaints 
• Disciplinary issues, including reviewing procedures and internal judicial proceedings in cases of date rape, hazing, computer usage, and harassment 
• The impact and legal effect of admissions materials and student handbooks 
• Student and third-party access to records and the Family Educational Rights and Privacy Act (FERPA) 
• Resolution and conflicts between FERPA and Massachusetts law 
• Accreditation 
• Limits on free speech 
• Balancing the interests of religious groups against conflicting interests 
• Government loan programs 
• Defamation 
• Procedural requirements of faculty and student organizations 
• Accommodation of disabled students

Our representation includes the successful defense of:

• A graduate school of medicine in a precedent-setting case brought by a student who contended that his dismissal for poor academic performance discriminated against him as a handicapped individual with dyslexia; an en banc ruling by the Court of Appeals established new law for colleges and universities under the Rehabilitation Act of 1973 
• A graduate school in a precedent-setting case brought by a student alleging violations of the Americans with Disabilities Act, Rehabilitation Act, and related Massachusetts statutes 
• A university, its president, newspaper, and chief of police against defamation and other tort charges brought by a student who faced discipline after fabricating claims of assault on campus 
• Breach of contract actions brought by students against a graduate school of medicine 
• An institution in separate actions brought by students who sought to enjoin their respective dismissals, for possession of a firearm and for unethical behavior 
• Federal and state court challenges to student disciplinary proceedings and sanctions

Employee Relations

Our academic institution clients count on us to represent them in all aspects of their relationships with faculty and other employees.

Faculty relations:

• Academic freedom 
• Tenure and its alternatives 
• Faculty governance 
• Faculty grievances
• Equal Employment Opportunity issues and claims of unlawful discrimination and/or retaliation
• Employment agreements
• Development and implementation of Affirmative Action programs and advice during audits by the Office of Federal Contract Compliance Programs under:
• Discipline and discharge for cause 
• Institutional reorganizations 
• Unionization and collective bargaining issues
• Early retirement programs, including ERISA and ADEA issues

Non-faculty:

• Collective bargaining 
• Fair Labor Standards Act 
• Occupational Safety and Health Act 
• Workers' compensation 
• Sexual harassment policies and training 
• Disability policies and training 
• Alternative dispute resolution 
• Supervisory training 
• Review of handbooks, policies and procedures 
• Right and obligation to test for drugs 
• Drug-Free Workplace Act and related laws 
• Discipline and discharge

We have successfully defended institutions in numerous cases, examples of which include:

• A Title VII action brought by a coach who was denied tenure 
• A contract suit in which a professor alleged discrimination and wrongful discharge after being denied tenure 
• A claim by a professor that a university breached her contract by not following the procedural and substantive guidelines in a faculty handbook 
• An attempt by a tenured professor to enjoin the governing board's decision to revoke his tenure for cause 
• A suit brought against an institution and two administrators, and tried in a federal court, in which the plaintiff alleged discrimination of national origin and handicap, theft of intellectual property, and other claims 
• A suit brought against a university and the dean of one of its graduate schools in which a former assistant dean contended that her discharge was in retaliation for having spoken out in opposition to the institution's allegedly inadequate affirmative action efforts
• A lawsuit brought against university administrators by a student and his parents after the university began student disciplinary procedures

Collective Bargaining

The firm provides a broad range of services to those of our clients that employ unionized work forces.  We also regularly represent academic institutions in negotiating collective bargaining agreements, and in grievance and arbitration proceedings under collective bargaining agreement obligations.  In addition, the firm provides counsel and representation to clients on the full range of labor law related issues, including decertification petitions, union avoidance initiatives and training, union organizing campaigns, and proceedings before the National Labor Relations Board and as applicable, before related state agencies. 

Among others, the firm has represented clients whose work forces are represented by the following unions:  

• Local 254, S.E.I.U. 
• International Brotherhood of Police Officers 
• Massachusetts Nurses Association 
• Massachusetts Teachers Association 
• American Federation of Teachers 
• International Brotherhood of Teamsters 
• American Federation of State, County and Municipal Employees

Institutional Financing

Nutter provides a broad range of services to our clients seeking access the public financial markets or private financing through the issuance of tax-exempt bonds, loans from pooled bond programs, bank financings and federal funding.  Our experience as trustee’s counsel, underwriter’s counsel and borrower’s counsel provide us with the perspective to be both strong advocates for our institutional clients and pragmatic problem solvers able to efficiently manage financings.

The firm has represented clients in connection with tax-exempt financings by both the Massachusetts Development Finance Agency and the Massachusetts Health and Educational Facilities Authority and conventional bank financings, including:  

• Stand-alone bond issues
• Pooled bond issues
• Commercial paper programs
• Lines of credit
• Term loans
• Federal funding

Tax-exempt Status

Preserving the tax-exempt status of an academic institution or organization should be a key consideration in all projects and transactions.  We have worked with independent schools, colleges and universities to structure transactions, develop programs and assess possible initiatives in light of this consideration.  We have also represented clients before the Internal Revenue Service, the state Attorney General, the Secretary of State and local authorities.  Recent issues and opportunities that have arisen for our tax-exempt clients include:

• Structuring revenue-raising activities, including royalty arrangements, medical services, donor advised funds and unrelated business activities
• Forming and operating taxable and tax-exempt affiliates
• Planning and executing mergers and liquidations with tax-exempt charitable and educational organizations and taxable entities
• Restructuring of complex organizations and joint ventures with taxable and tax-exempt entities
• Evaluating political and lobbying initiatives 
• Participating in domestic, international and economic development programs 
• Avoiding excess benefit to organization insiders when the organization enters into transactions with those insiders 
• Compensating and indemnifying employees, officers and directors
• Establishing scholarship, fellowship and loan repayment assistance programs
• Engaging in venture philanthropy
• Seeking abatement of penalty excise taxes
• Establishing and maintaining good governance policies
• Devising domestic and foreign grantmaking procedures

Intellectual Property

A large number of academic institutions rely on Nutter for protecting their intellectual property assets.  The intellectual property team at Nutter is intimately familiar with the unique challenges that academic institutions face in protecting their intellectual property assets, as well as the opportunities that well-crafted intellectual property portfolios can provide for monetizing those assets.  We work effectively and efficiently with an academic institution’s technology transfer professionals to develop strong intellectual property portfolios that are well aligned with the institutions’ business goals. 

Nutter is acutely aware of, and therefore provides high quality legal service within the context of cost constraints that many academic institutions face.  We counsel its academic clients on a wide range of intellectual property issues ranging from patenting new technologies to protecting trademark and copyright assets, as well as enforcing intellectual property rights.  Some examples of technologies for which Nutter has obtained patent protection for its academic clients include nanotechnology, optics, lasers, lithography, advanced materials, biotechnology and medical devices.

Litigation

Nutter represents its college and university clients in federal and state courts on a wide range of issues covering almost all of the other areas of law mentioned in this practice description.  Among the many specific issues have been the following:

• Third party tort liability on campus
• Tort and contract liability of students and employees
• Employment claims against the school and its administrators and managers
• Faculty tenure and contract disputes
• Disputes involving construction and other contracts
• FERPA and individual privacy
• Free speech claims
• Religious freedom and right of association
• Defamation claims
• Claims resulting from arrests by campus police
• Claims brought by disgruntled students and their parents

Real Estate, Zoning and Land Use

We represent academic institutions in all aspects of their needs in the areas of real estate permitting and development, acquisition and disposition, and financing.  We have: 

• Negotiated and prepared land acquisition and disposition agreements, leases, easements and restrictions
• Successfully secured zoning, land use and environmental permits for major projects, including in-depth knowledge and assertion of an academic institution’s rights under the Dover Amendment to the Massachusetts Zoning Act
• Successfully dealt with the Boston Redevelopment Authority
• Drafted special university district zoning ordinances 
• Counseled on student and faculty housing and the use of university property in for-profit ventures
• Advised on real estate and environmental liability exposure aspects of gifts of real estate
• Worked on grant applications, architectural and construction contracts
• Handled bond financings with HUD, Mass Development and MHEFA

In precedent-setting litigation for one of our university clients, we successfully challenged a zoning ordinance for violation of the Dover Amendment (which prevents unreasonable restrictions by municipal zoning on non-profit educational and religious uses).  As a result of this victory, our client was able to continue with its plans to build a library expansion and, subsequently, a science center, a student center, the expansion of its athletic facilities and a new classroom building. 

Environmental and Related Insurance

We have advised academic institutions on all aspects of environmental law and related insurance claims, including: 

• Advice concerning all federal, state and local laws and regulations, including Superfund, M.G.L. c. 21E, asbestos, mold, and related contamination
• We represented a university in major environmental and related insurance litigation under the federal Superfund law
• We have negotiated and successfully enforced pollution legal liability insurance policies

Antitrust

We take a practical, business-oriented approach towards providing clients with advice, designed to assess and reduce antitrust risk. Nutter's antitrust lawyers keep abreast of recent decisions and trends in order to identify creative solutions to antitrust problems We counsel a range of clients, including academic institutions, in all areas of antitrust compliance and we represent clients in litigation, in private civil matters as plaintiffs or defendant's counsel, in civil and criminal government investigations and in merger reviews and challenges. We also act proactively with clients offering antitrust compliance programs, conducting internal investigations, and working with special committees within an organization's board when illegal activity is in question.

For example, we represented an institution in an antitrust investigation by the U.S. Department of Justice, concerning the setting of tuitions, faculty salaries and financial aid.