Higher Education

Bond enjoys a special relationship as outside general counsel for a significant number of colleges and universities, ranging from small liberal arts colleges to large research universities. In that capacity, we regularly provide legal and counseling services, not only in the general areas of law practice outlined below, but also in the specific area of higher education law related to faculty and student constituencies. We have a long record of active participation in the National Association of College and University Attorneys, and two of our firm's attorneys have served as President of the Association.

Our academic affairs work includes the development and review of academic policies and faculty handbooks; review of promotion, tenure and nonrenewal cases; the termination of academic programs; the development of compliance programs to address federal regulatory demands; and representation of institutions in accreditation appeals and hearings.

Our general business projects range from contract drafting, review and negotiation to unrelated business income tax issues, and from not-for-profit corporation law matters to insurance and risk management concerns. We provide collection services for our higher education clients, have obtained charter amendments for them and have helped to define the terms for cooperative activities with off-campus entities.

The following are examples of some of our work in this area:

• Handled all legal work related to the relocation of a college from Long Island to Upstate New York, including the successful defense of an action to enjoin relocation.
• Developed a comprehensive transition plan for achieving independent charter status for Utica College of Syracuse University.
• Secured IRS approval that funds from industrial corporations under research contracts were for "research" and not unrelated business income.
• Provided legal services involved in securing partial state funding for, and ultimate construction of, a 50,000 seat domed athletic facility.
• Successfully defended "educational malpractice" class action claim brought in response to institution's collection suit.
• Represented nine universities in formation of syndication for telecast of Division I football games throughout Northeastern United States.
• Involved in organizational structuring; tax, business, and financial planning; and new building construction and financing of successful Rensselaer Polytechnic Institute Technology Park.
• Involved in numerous co-generation projects, including a $120,000,000 facility, constructed at developer's cost, furnishing steam for adjacent colleges and hospitals.
• Reorganized separate medical college and hospital corporations into a major academic medical center under direction and control of an umbrella entity.
• Obtained a landmark unrelated business income tax ruling requiring IRS to allocate institution's expenses of facility or property leased to others in proportion to days of actual total use, rather than 365 days in year.

In the student affairs arena, we have extensive experience with student conduct codes and disciplinary cases, mass student demonstrations, search and seizure issues, student organizations (including fraternities and sororities), racial and sexual harassment policies, drug testing programs, and the disclosure and release of student records.

Examples of past cases include:

• Summary judgment for institution in action by Nigerian student dismissed on academic grounds on eve of graduation. Early high-water mark of "academic abstention" doctrine.
• Summary judgment for university following suit by plaintiff for libel by student editors of campus newspaper. Early and much-noted case insulating private institutions from student libels.
• Successful resolution of numerous cases with the Office for Civil Rights involving claimed discrimination.
• Successful court defense of numerous student disciplinary proceedings.
• Development of a reasonable suspicion-based student athlete drug testing program to meet all Constitutional standards for public institutions.

We have counseled colleges and universities, as well as other not for profit institutions, for many years on the legal and practical issues surrounding charitable giving and the institution's development function. We guide institutions through the maze of rules governing the deductibility of charitable gifts so that they may work more effectively with potential donors. We regularly assist institutions in establishing and maintaining endowment programs including the design of endowment policies and agreements, interpreting the legal and accounting constraints on amounts which can be expended out of endowments, and structuring appropriate responses to changes in factual situations or improper or unduly restrictive conditions on existing gifts. We offer counsel on the full array of available planned giving options from simple bequests, to implementing and guiding institutions with charitable gift annuity programs, to helping institutions work with potential donors on charitable remainder trusts, charitable lead trusts, and related charitable giving vehicles. We regularly work with our general tax and public finance lawyers to help institutions design creative ways to meet their capital needs.

Attorneys in our collegiate sports practice work exclusively in matters related to National Collegiate Athletics Association (NCAA) rules, as well as the regulations of other governing bodies in intercollegiate athletics, such as the National Association of Intercollegiate Athletics (NAIA) and National Junior College Athletics Association (NJCAA). We have represented over 145 colleges, universities and conferences in NCAA compliance and NCAA infractions matters during the past 20 years.

We conduct NCAA infractions investigations from the time of the first allegation through a final proceeding with the NCAA. We have knowledgeable and experienced attorneys capable of conducting sensitive investigations in this unique area. Our attorneys have achieved unequaled results through their ability to combine working with conference and NCAA representatives with thoroughly developing evidence to evaluate objectively whether violations have occurred. We work to protect the institutions interests and to assure that student-athletes and coaches are treated fairly. The thoroughness of our investigations and reports in NCAA infractions cases and the strength of our strategies for corrective measures in compliance systems have been repeatedly cited by the NCAA Committee on Infractions as significant factors in mitigating penalties for client institutions.

In addition, we assist institutions with NCAA eligibility matters, rules application and governance issues. We are a national leader in the design and implementation of NCAA and conference rules compliance programs. We also provide an outside, independent assessment of an institution's NCAA compliance systems

Bond's long-standing involvement in higher education law generally, combined with the athletics experience of its collegiate sports practice, puts us in a unique position to help collegiate institutions and individuals in all NCAA related matters.

All types of commercial real estate transactions are handled within the firm. We have experience working with lenders, individual and corporate owners, and developers involved in varied projects including shopping centers, office buildings, educational institutions, research parks and industrial facilities.

In the higher education area, we have:

• Secured partial state funding for construction of Syracuse University's 50,000 seat Carrier Dome, and was involved in all aspects of the existing stadium demolition; architectural, engineering, and construction contracts for the new stadium; and the complete environmental review process for the new stadium (from the draft EIS through the successful litigation and appeal of all environmental objections); all completed on time and on budget in 26 months.
• Handled all aspects of the construction of a campus Hotel Conference Center, financed and built by the developer, under a long-term ground lease from Syracuse University.

Bond has played a major role in the development of complex facilities for educational institutions, ranging from high-technology centers and research parks, to a major domed stadium and hotel, to the development of cogeneration facilities for furnishing steam to two universities and neighboring facilities. In this area of the law, we regularly work with architects, engineers, and design professionals, as well as owners, financial institutions, contractors, subcontractors, material suppliers, and manufacturers. We draft contracts, purchase orders, project manuals, requests for proposals, performance and labor and material payment bonds, change orders and all of the other documents needed for projects to proceed in a timely manner and within cost estimates. When disputes arise, we assist in negotiations, or represent the client in litigation, arbitration, or other dispute resolution.

Illustrative of the scope of our experience and services, we provided the legal services in connection with the planning, financing and construction of Syracuse University's Carrier Dome, Rensselaer Polytechnic Institute's Technology Park, and numerous co-generation projects, including a $120,000,000 facility, constructed at developer's cost, furnishing steam for Syracuse University and adjacent colleges and hospitals.

Since the passage of the Employee Retirement Income Security Act of 1974 (ERISA), the regulation of pension and welfare benefits has been the subject of several major pieces of legislation, significant annual legislative modifications, and numerous administrative regulations and pronouncements. This dramatic and continuing expansion has created a particularly complex and fluctuating area of law that impacts higher education institutions and their employees. Bond counsels its higher education clients on all aspects of this burgeoning field of law -- not only to address the myriad legal requirements, but also to develop and implement benefits, strategies and plans that serve each institution's particular objectives.

Our experience in the higher education area extends to all types of retirement and welfare benefit plans, including:

• health plans
• employee assistance plans
• group term life insurance plans
• severance pay plans
• cafeteria plans
• early retirement incentive programs
• tuition reduction plans
• golden parachute arrangements
• educational assistance plans
• defined benefit retirement plans
• dependent care plans
• defined contribution plans

Our practice in the environmental field began with legislation establishing water quality standards in 1949 and has developed dramatically ever since. It encompasses the full range of environmental issues with an emphasis on regulatory compliance and enforcement including, for example, matters relating to asbestos projects, hazardous and nonhazardous wastes, disposal of laboratory wastes and radioactive materials, lead-based paint, the Clean Water Act, the Clean Air Act, environmental assessments under the State Environmental Quality Review Act, and related litigation. Our experience involves substantial contacts and negotiations with federal and state agencies handling environmental issues.

Among the matters we have handled for higher education clients are:

• Environmental issues involved with a private university's development of a research and technology park.
• In one of the earliest pollution cases against an educational institution, arising out of a coal pile fire and major fish kill, negotiated a consent order requiring a $2,500 community oriented environmental study in lieu of the $500,000 fine initially threatened.
• Handled and successfully defended the environmental review associated with construction of a 50,000 seat domed-stadium.
• Provided counsel and conducted compliance reviews for a number of colleges and universities in response to EPA Region 2's regulatory compliance initiative and assisted in the development of the first Voluntary Audit Agreement between EPA and a private higher education institution.

Bond attorneys advise clients on immigration matters and assist them through the complex regulatory and bureaucratic processes required for foreign-born individuals to live and work in the United States. Representative clients include small and large businesses, health care and educational institutions, professionals and individuals.

Our immigration law practice focuses on employment-based applications and petitions (particularly non-immigrant work visas and permanent residency), and related labor condition and certification applications. In the higher education area, we regularly assist institutions by providing immigration services on behalf of foreign-born faculty and research personnel, as well as responding to special student issues. We also provide counsel in connection with family-related visas.

We represent clients throughout the preparation, filing and processing of immigration-related applications and petitions with government agencies. We also provide general assistance and advice to clients concerning the proper choice of visas for employees and potential employees, governmental procedures and pitfalls and the content and format of applications, petitions and related documents.

We routinely counsel Human Resources Managers on I-9 compliance issues and represent institutions facing Bureau of Citizenship and Immigration Services audits and enforcement actions.

Bond has developed substantial experience in the protection and commercial exploitation of intellectual property in the following areas:

Computer Law — Protecting proprietary rights in computer software, drafting and negotiation of computer contracts, and software marketing and publishing agreements;

Communications Law — Addressing communications policies and privacy issues;

Copyright Law — Obtaining and enforcing copyright protection for creative works;

Government Contracts — Negotiating government contracts and cooperative research and development agreements; drafting appropriate provisions for the ownership and allocation of intellectual property rights; preparing compliance policies for government contractors; interpreting regulatory requirements; and identifying protectable technology;

Litigation of Intellectual Property Rights — Representing clients in all types of federal and state litigation and alternative dispute resolution involving patents, copyrights and trademarks;

Patent Prosecution and Protection — Advising clients and rendering opinions on the patentability of inventions and infringement of existing patents; conducting patent searches and studies; and preparing, filing, and prosecuting patent applications;

Technology Licensing and Technology Transfer — Drafting and negotiating copyright, patent and trademark licenses including foreign licensing; negotiation and drafting of university/industry technology transfer agreements;

Trademark and Service Mark Protection — Filing applications, prosecuting, maintaining and enforcing registered trademarks and service marks under both federal and state law; and drafting agreements and policies for trademark and character licensing programs.

The firm's labor and employment law practice encompasses a full range of services for the more than two dozen higher education institutions which are our clients. For colleges and universities with unionized workforces, this includes collective bargaining, labor arbitration, and representation before the National Labor Relations Board (or the appropriate Public or State Labor Relations Board) in both unfair labor practice and representation matters. In each of these areas, as well as all others, the level of our services varies in accordance with client needs. For example, for many clients involved in collective bargaining, one of our attorneys is present at the bargaining table and serves as chief spokesperson; for others we are present during negotiations as a resource, but not as a chief negotiator; for still others we counsel behind-the-scenes, draft and cost proposals and work with the management team to formulate a cohesive and effective bargaining strategy.

Similarly, with respect to labor arbitrations, our services complement the institution's resources. For clients with a limited in-house staff, or for more complex problems, this may mean total involvement in the arbitration process, from counseling on the appropriate grievance answer at the initial steps to the preparation of witnesses and presentation of the institution's case before an arbitrator. It may also involve a more limited role, such as counseling in-house personnel on arbitration approaches and strategies and aiding in the preparation of witnesses, while the in-house staff actually presents the institution's case.

For non-unionized institutions, our attorneys provide assistance in the preparation and/or review of faculty and staff handbooks, appointment letters and personnel policies, including counseling on employee screening and testing; supervisory training; and advice in responding to union organizing campaigns involving faculty, graduate students and hourly staff

Our practice not only deals with traditional areas of labor law, but also with the full range of employment law matters. This practice includes state and federal court representation of colleges and universities in breach of contract, employment-at-will, and other employment-related claims. It also includes defending institutions before state and federal administrative agencies (including EEOC and OCR), and in courts, against claims of discrimination (e.g., race, gender, sexual harassment, age, disability, etc.). We also regularly assist colleges and universities in the preparation of affirmative action plans and programs, and provide representation during OFCCP audits and investigations.

Finally, our attorneys are experienced in the full range of other labor problems likely to be encountered by colleges and universities, including faculty tenure and contract disputes, State and Federal wage/hour matters, OSHA investigations and hearings and immigration matters.

Examples of past cases for colleges and universities include:

• Successful representation in numerous internal and judicial review (State and Federal trial and appellate courts) proceedings involving tenure denial, non-renewal, non-promotion and termination.
• Confidential investigations of sensitive charges of wrongdoing by top administrators, faculty and others.
• Representation of institution in landmark NLRB proceeding resulting in assertion of NLRB jurisdiction over private college and university labor and collective bargaining matters, reversing the Board's prior abstention position, and removing institutions from the unpredictable jurisdiction of state agencies.
• Secured summary judgment on behalf of one community college's board of trustees in a federal suit brought by a former dean alleging that his termination violated the ADEA, constituted a deprivation of property without due process, and was in retaliation for protected free speech; and secured summary judgment on behalf of a second community college in a federal action brought by a former president raising various constitutional liberty and due process claims as a result of his non-renewal.
• Represented Ithaca College in the first NLRB decision on managerial status of faculty following the U.S. Supreme Court's decision in NLRB v. Yeshiva University. After a 25-day hearing and extensive briefing, the NLRB agreed that faculty effectively determined curriculum, grading system, admission standards, course schedules and calendar, and hiring and tenure decisions and thus were managerial and not eligible for collective bargaining. Have represented other institutions in Yeshiva hearings since then.
• Successfully defended of an institution against compensation and termination discrimination claims brought by a female coach of a women's basketball program under Title IX.

Attorneys from the firm's litigation department regularly appear in both state and federal courts representing higher education institutions at hearings, motions, trials, and appeals in a variety of controversies. Its attorneys are experienced in virtually all legal areas, including antitrust, civil rights, commercial, construction, employment discrimination and personal injury.

With respect to colleges and universities, we have:

• Peacefully cleared both Syracuse University administration building and Carpenter Hall at Cornell University of mass student demonstrations, utilizing temporary restraining order and innovative civil contempt of court citations.
• Secured summary judgment for Cornell in an action by Nigerian student dismissed on academic grounds on eve of graduation, marking the early high-water mark of "academic abstention" doctrine.
• Prepared amicus briefs for Syracuse University in the appeal of Lefkowitz v. Cornell University, reversing a lower court holding that huge wind tunnel given to Cornell had to be held in perpetual charitable trust, helping to resolve an important endowment issue regarding an institution's ability to deal with university property as corporate asset, not as trust asset.
• Secured summary judgment for university sued by plaintiff for libel by student editors of campus newspaper. Early and much-noted case insulating private institution from student libels.
• Handled litigation in connection with the New York Chiropractic College's relocation from Long Island to the former Eisenhower College campus in Upstate New York, including the successful defense of an action to enjoin relocation.
• Secured summary judgment for a private college in a suit alleging negligent hiring and supervision.
• Successfully defended a community college's board of trustees in a federal suit by a former dean alleging his termination violated the ADEA, constituted deprivation of property without due process, and was in retaliation for protected free speech, with summary judgment in favor of the college affirmed by the U.S. Court of Appeals.
• Successfully defended numerous requests for judicial review of student disciplinary proceedings under New York's Article 78.
• Successfully obtained summary judgment for a university in a class-action Title IX case involving claims by female student-athletes.
• Successfully resolved multi-million dollar litigation involving ownership of principal and historic appreciation of endowments held by Syracuse University in connection with its medical college transferred to State University of New York.
• Successfully affirmed private university's right to enforce parking regulations and fines at the appellate level.
• Secured national landmark holding, by New York State's highest court, that a medical college can practice medicine (through faculty practice plan) over objections of unlicensed corporate practice of medicine" and "fee splitting."
• Obtained and preserved on appeal a landmark judgment rejecting claims by suspended students that an otherwise private college disciplinary decision was state action for purposes of 42 U.S.C. § 1983 and the Fourteenth Amendment because the college had adopted disciplinary rules for the maintenance of public order on campus, as required by N.Y. Educ. Law § 6450.
• Secured judgment after trial in favor of a private college in a suit by a student who was convinced to withdraw due to psychiatric problems, but who alleged that his withdrawal was coerced and constituted a deprivation of property without due process of law, and discrimination on the basis of his psychiatric handicap in violation of § 504 of the Federal Rehabilitation Act.

Bond attorneys have a wealth of experience counseling higher education institutions in business collaborations, spin-offs, mergers and other alliances. In addition to our experienced lawyers who have been advising higher education clients for many years in their private practice, Bond has a number of attorneys who previously served as general counsel or in the role of senior administrator at several public and private colleges and universities. This in-house experience provides an enriched perspective on client issues arising in affiliation transactions.

The firm currently provides a comprehensive range of services to more than 100 institutions of higher education and more than 200 nonprofit organizations. We also act as a sounding board to college presidents and board members as they analyze the panoply of fiscal and corporate options available to remain competitive in today’s increasingly demanding academic environment.

Clients receive sound counsel addressing:

• The fiduciary responsibilities of boards to ensure the financial stability of an institution;
• Analysis of different options for strategic alliances or other collaborations in which institutions remain independent while sharing costs and maximizing efficiencies; and
• Steps to prepare for and execute a merger or consolidation between institutions.

Our lawyers advise clients on important considerations at each stage of the process, including:

• Meeting due diligence requirements;
• Advising on and/or conducting negotiations;
• Handling employment issues and concerns;
• Addressing financial, real estate and endowment issues;
• Assisting in accreditation and regulatory requirements and implications;
• Advising on tax issues and implications; and
• Branding and trademark issues.

Supported by Other Practices

Higher education mergers and affiliations are handled by attorneys in our higher education practice who are supported as needed by other legal practices in the firm, including business and transactions, employee benefits and executive compensation, environmental, intellectual property, labor and employment and tax, to name a few.

For examples of our work in this growing area, please see our Mergers and Strategic Alliances brochure.

We obtain appropriate charitable, educational, and environmental exemptions for institutional clients. We also address valuation issues associated with all types of property. Our practice includes substantial contact with real estate appraisers and engineering valuation consultants. Our clients, both public and private, are located throughout New York State.

Bond has been engaged in public finance for almost 30 years. The firm is included in the "Redbook" (i.e., the "The Bond Buyer's Municipal Marketplace") as nationally recognized bond counsel. In recent years we have issued approving opinions on more than $1 billion of bond and note issues. Our attorneys are active members of the National Association of Bond Lawyers, have acted as panelists in seminars conducted by the Association, and have participated in projects conducted by the New York State Bar Association's Tax Section.

We have extensive experience as bond counsel or institution counsel in financings through local Industrial Development Agencies and the New York State Dormitory Authority for college and university facilities. During the last several years, we have been bond counsel in financings for Syracuse University, Utica College, Le Moyne College, Clarkson University, St. Lawrence University and Rensselaer Polytechnic Institute (RPI). We also have served as institution counsel in connection with Dormitory Authority financings for Ithaca College, Hamilton College and Hartwick College.

Bond attorneys regularly assist our college and university clients with a wide variety of tax-exemption as well as income tax, employment tax, sales tax, real property tax, estate and gift tax and estate planning matters. Our tax services include tax planning and compliance work as well as representation of clients before the Internal Revenue Service, the New York and Florida State Tax Departments and local property tax jurisdictions.

Our recent college and university tax work involved:

• Compliance with not-for-profit and tax-exemption requirements under Federal and State tax laws and State real property tax-exemption laws;
• Unrelated business income tax matters, including issues relating to internet sales, affinity credit cards, bookstore sales, sponsorship acknowledgements, royalties, and many other activities relevant to the unrelated business income tax;
• Private inurement and intermediate sanction issues;
• Joint ventures with for-profit entities;
• Structuring ancillary activities using subsidiaries and other affiliates, including single member limited liability companies;
• Qualified tuition programs under Internal Revenue Code Section 529;
• Scholarship and remitted tuition issues;
• Employment tax and income tax withholding requirements for non-resident alien and other employees;
• Sales tax issues, including sales tax on transactions involving affiliated entities;
• Structuring charitable gifts and bequests under the tax law;
• Tax and financial issues relating to endowments and the return on them; and
• Real property tax exemption matters, including issues relating to potential non-exempt use of college and university property, and real property valuation and assessment controversies.

Nearly 50 years after its passage, Title IX of the Education Amendments of 1972 continues to evolve in how it seeks to prohibit educational institutions from discriminating on the basis of sex. As a result of the law’s shifting regulatory provisions, colleges and universities have an ever-increasing need for timely, practical legal advice concerning Title IX compliance.

To meet this need, Bond has a team devoted to assisting our college and university clients with fulfilling their Title IX obligations, understanding rule changes as they occur and helping them navigate the space where state and federal requirements intersect, or even collide. Our Title IX team consists of attorneys who are not only knowledgeable about Title IX and its newest regulatory requirements concerning the investigation and adjudication of sexual misconduct cases, but also as it relates to sexual assault prevention guidance and gender equity in athletics. 

We work with each client to craft a Title IX policy solution that fits the institution’s needs and culture. We also assist clients with disciplinary policy implementation, including hearing procedures, as well as Clery Act compliance and reporting. We work with our clients in connection with internal disciplinary proceedings and appeals, and we defend our clients in the event of external legal challenges to disciplinary results.

We have extensive experience representing clients before governmental enforcement agencies, including the Office for Civil Rights. Our team also provides training to administrators and other “responsible employees” with reporting and/or investigatory responsibilities, in each case designed to fit an institution’s specific policy, organizational structure and campus culture.

Athletics

Bond can conduct a review of all policies that are applicable to a client’s athletics department, including collegewide sexual assault policies, student-athlete drug-testing policies, non-discrimination policies and related training, as well as help identify areas where a client can minimize risk.

In a full athletic program review, Bond attorneys will review athletics facilities and collect information pertinent to the intercollegiate athletics program, including budgets, publicity materials, enrollment information and team eligibility lists. Such information is reviewed for potential compliance concerns.

Investigations

The pressure is on for colleges and universities to conduct timely investigations into allegations of civil rights discrimination, sexual misconduct, disability claims, whistleblower claims, workplace violence incidents, retaliation and more.

Our Title IX team can conduct independent, sensitive and thorough investigations for a variety of purposes (e.g., to obtain legal advice, formulate business decisions, respond to a threat of litigation or address a public relations crisis). Whatever the purpose, our team will ensure that any investigation we conduct is independent, fair and balanced. Our attorneys will develop an investigative plan with milestones for management briefings; conduct interviews and research; assess credibility; determine the extent of the alleged misconduct in terms of the people, offices and programs involved; and advise on the desirability of disclosing information. 

Title IX Team:

Mallory Campbell
Christa Cook
Laura Harshbarger
Gail Norris
Jane Sovern
Philip Zaccheo