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Educational institutions are facing significant challenges, including those brought about as a result of the pandemic. From declining student enrollment and health and safety issues to reduced government funding and an increasing multitude of intricate laws and regulations governing all aspects of their operations, the current environment is very complex. Consequently, leaders of these institutions must confront bottom-line concerns created by increased expectations amidst severe revenue challenges, while also contending with intense scrutiny of their handling of matters involving campus health and safety, student disciplinary processes, DEI initiatives, international student and faculty engagement, data privacy and security, athletic programs, and a host of additional issues.

Crowell & Moring’s Education Practice provides colleges, universities, academic medical centers, public and independent schools, and other educational institutions with knowledgeable and solution-oriented guidance to help navigate these multifaceted legal, operational, and financial challenges. We work proactively with our client partners to anticipate potential problems and to mitigate risk, and, collaboratively with them to address and resolve problems when they do arise. Our multi-disciplinary Education team is well-positioned to advise on a wide variety of matters, including:

  • Government Contracts/Grant. We defend grantees in government investigations, audits, and suspension and debarment proceedings and counsel on cutting-edge legal issues that arise in this context, including those involving intellectual property rights, domestic sourcing restrictions, performance reporting, administration of subawards, program income, program integrity requirements, cost allowability and accounting, and conflicts of interest. Read more.
  • Title IX Litigation and Compliance. We have extensive experience defending educational institutions against Title IX claims brought by both complainants and respondents arising out of student disciplinary proceedings, advising on evolving Title IX standards for protecting both respondents and complainants, and assisting in the development of sexual misconduct policies and adjudication procedures for students, faculty, and staff.  We also assist institutions through the regulatory rulemaking process, including preparation of comments and other submissions.
  • Investigations. We regularly are called upon to advise on and conduct investigations of sensitive allegations of both current and historical sexual misconduct on campus, and other forms of discrimination, abuse, or harassment.  Our clients include colleges and universities, as well as independent and public primary and secondary schools. Read more.
  • Intellectual Property (IP). We have experience representing educational institutions in the full scope of IP protection and commercialization matters. We represent numerous research universities in obtaining patents for inventions resulting from university research, advise on the licensing of their trademarks and on the licensing and enforcement of their patent portfolio, negotiate and draft complex licenses and technology transfer agreements, maximize universities’ return on investment to provide a revenue stream to support tech transfer objectives, and counsel on trademark, copyright, and trade secret matters. Read more.
  • COVID-19 Impacts. Since the onset of the COVID-19 pandemic, we have advised educational institutions on the myriad of complex issues stemming from the crisis, including the impact of state emergency declarations on cancellation and tuition reimbursement matters and risk mitigation measures with respect to tuition and fee refund suits.  We also advise on the various CARES stimulus funding available and Paycheck Protection Program (PPP) loan eligibility and subsequent forgiveness, as well as issues related to implementation of campus-wide vaccine requirements. Read more.
  • Academic Medical Centers. Academic medical centers execute on their unique missions of education, research, and training while also competing in the health care marketplace as health care providers. We counsel these clients on traditional reimbursement, fraud and abuse, and commercial transaction issues including academic affiliation agreements. In addition, we provide legal advice on a variety of matters involving graduate medical education, scientific integrity, research objectivity, human subjects research and the Common Rule, FDA reporting obligations, the Shelby Amendment expansion of the Freedom of Information Act, HIPAA compliance, inventorship and technology transfer, and the NIH grants process. We also deal with antitrust issues in collaborative activities among research centers. Read more.
  • Student Affairs. In addition to the student conduct issues referenced above, we advise schools regarding the range of issues relating to regulation of students’ freedoms of expression and association, privacy of student health information and other personal data under FERPA, and regulatory requirements under the American Disabilities Act and similar provisions as to accommodations for learning within the academy.
  • Privacy & Cybersecurity. Our team guides colleges, universities, academic medical centers, and research institutions through the myriad federal and other laws governing the collection, use, and protection of data. We assess data flow and cybersecurity practices to strengthen defenses against cyber intrusions and identify and protect vulnerable and valuable digital information. We also assist with vendor oversight by evaluating existing contracts and developing improved procurement protocols. When data breaches involving personal information, trade secrets, and intellectual property occur, we help educational institutions manage these incidents, investigating the scope, determining whether individual and governmental notification is required, and defending federal and state enforcement actions and class actions.
  • Foreign Influence and Affiliations.  The uptick in the number of cases that the Department of Justice has brought involving researchers and their undisclosed relationships with China have prompted colleges, universities, and research institutions to examine their relationships and affiliations with foreign entities.  We help educate, counsel, and advise our clients on potential conflicts of interest and disclosure requirements that may give rise to violations of various federal fraud statutes and the Economic Espionage Act.  To guard against any potential legal exposure, we also work with our clients to adopt guidelines governing affiliations with foreign entities and to guard against potential insider threat cases where proprietary information may be at stake, including conducting internal investigations.
  • Labor and Employment. We have a broad-ranging Labor and Employment Practice.  We provide affirmative action and pay equity advice and counseling, conduct discrimination and harassment investigations, advise on promotion and tenure issues, and conduct labor negotiations. We also advise on compliance with the Fair Labor Standards Act (FLSA), and other wage/hour issues. We perform audits regarding a wide range of compliance obligations in advance of litigation or governmental investigations, and advise on appropriate remedial actions and best practices. We have extensive experience handling complex labor disputes, and counsel universities with respect to collective bargaining negotiations and contract administration, including grievance arbitration.

In addition, our Education Practice advises on a range of other issues, including eligibility issues regarding Title IV of the Higher Education Act (HEA), health risks and liabilities pertaining to sports and particularly concussion-related matters, lobbying and government ethics issues, and renewable energy procurement for higher education institutions.

Case Studies

The following is a sampling of our collaborations with educational institutions to show how Crowell & Moring has addressed their most pertinent issues to achieve positive outcomes.

(1) Title IX Litigation

  • Issue: Two students alleged that a large private university had failed to comply with Title IX and the university’s policies and procedures pertaining to a disciplinary proceeding in which it investigated and adjudicated the students’ cross-complaints of sexual misconduct.  Specifically, they sought money damages based on alleged violations of Title IX, breach of contract, estoppel and reliance, and negligence.
  • Action: The firm reviewed and strategized regarding the complaint, performed extensive research on university liability for hazing and third-party conduct, analyzed the applicability of Title IX, and drafted and completed the motion to dismiss.
  • Outcome:  A district court granted the university’s motion to dismiss, dismissing three state law claims with prejudice and the Title IX claim without prejudice.  The plaintiff appealed to the circuit court, which affirmed the district court’s order, finding that the plaintiff did not show the university treated him differently because of his sex, while also ruling in the university’s favor on the breach of contract, estoppel and reliance, and negligence actions. This circuit court’s opinion provides important insight on its view of the appropriate pleading standard for Title IX cases—an issue on which circuit courts are split.

(2) International Student Restrictions

  • Issue: In July 2020, U.S. Immigration and Customs Enforcement (ICE) released a directive announcing that international students taking an online course load would not be allowed to remain in the United States the upcoming semester, anticipating the shift to online learning that would take place in response to the COVID-19 pandemic. Against the backdrop of the growing surge in coronavirus cases, the fast-approaching new school year, and the months of careful planning for reopening, ICE’s sudden announcement sent a shockwave through institutions of higher learning across the country.
  • Action: The firm challenged the directive on behalf of a major public university system, drafting declarations in support of a temporary restraining order and preliminary injunction to help ensure that international students would not be forced to leave the country as a consequence of the pandemic.
  • Outcome:  Following our filing and multiple lawsuits from other universities, ICE and the Department of Homeland Security (DHS) agreed to reverse its directive that would have forced international students to leave the United States for the Fall 2020.

(3) Faculty Misconduct with Students

  • Issue: Two alumnae from a coed college preparatory school wrote letters revealing a sexual relationship that one of them had with a teacher while enrolled at the school. Shortly after receiving these letters, the school’s Board of Trustees commissioned an independent investigation into these allegations and any other inappropriate faculty-student relationships.
  • Action: Our firm conducted an independent investigation for the school, conducting 110 interviews with 76 individuals, including 33 former students who attended between the 1960s and 1990s. We also interviewed many current or former faculty and staff members or administrators while reviewing thousands of pages of documents including personnel files of 29 employees of the school. Our investigation uncovered instances of sexual misconduct and inappropriate emotional relationships between faculty and students spanning several decades.
  • Outcome:  We prepared a comprehensive report recounting credible accounts of misconduct and submitted the report to a special board committee created to examine the findings and make recommendations to the Board of Trustees. The school then released a public statement on the report and its findings, which also discussed systemic and cultural changes made at the school over the years and potential action steps the school was evaluating and would consider implementing in the future.

(4) Flu Vaccine Requirement

  • Issue: Due to the impending confluence of the flu season and the COVID-19 pandemic, a university president issued an executive order requiring that all students, employees, and faculty working, studying, or living on campus receive the flu vaccine, subject to exemptions and accommodations. Five students, faculty, and staff sued the university, seeking to enjoin the executive order.  Plaintiffs claimed that the executive order was an ultra vires act; violated federal and state constitutional rights to privacy, bodily integrity, and autonomy; and abridged their equal protection and First Amendment free exercise of religion rights.
  • Action: In less than 10 days, our team marshalled nine expert declarations, including leading national immunology and public health experts, arguing that the university president had authority to issue the order, that the order did not violate federal and state privacy rights or equal protection and First Amendment rights, and that the balance of harm weighed in the university’s favor because of the public health risk to individuals and the risk of an overburdened health system.
  • Outcome: After a lengthy hearing, the court immediately denied plaintiffs’ motion for preliminary injunction. The denial of the motion was not a final determination of the merits of the plaintiffs’ claims, however, within a week of the decision, plaintiffs voluntarily dismissed their case with prejudice, bringing a swift end to their challenge to the university’s flu vaccination mandate.

(5) Equal Pay Equity Claim

  • Issue: A tenured university statistics professor filed a complaint asserting violations of the Equal Pay Act (EPA) and alleged that she had been discriminated against on the basis of her sex in violation of Title VII with respect to a series of compensation decisions made over several years. The case involved contentious privilege disputes and battling experts.
  • Action: Throughout the litigation, our team consistently argued that the plaintiff had failed to identify a “comparator” who performed a job that required substantially equal skill, effort, and responsibility, and that was performed under similar working conditions within the same establishment, as is required by the EPA. We also put forth that the pay disparities between the plaintiff and her colleagues resulted from legitimate considerations, including seniority and relatively superior academic performance.
  • Outcome: Nearly five years later, an Order dismissing the case was signed and formalized the parties’ settlement of the matter. The litigation illustrates the unsettled nature of some of the legal issues, such as the scope of certain EPA and Title VII defenses, as a key decision on which the team relied in its Summary Judgment briefing was reversed by the DC Circuit mid-litigation.

(6) Faculty Misconduct with Students

  • Issue: An independent K-12 school received a report from counsel for an alumnus alleging abuse by a faculty member during the 1980s. Needing to conduct an independent investigation of faculty misconduct with students, the firm retained Crowell & Moring.
  • Action: Our team conducted a seven-month investigation, including multiple interviews with 54 individuals and reviewing available school files, yearbooks, and other documentary evidence provided by victims and other witnesses. Our investigation focused on faculty misconduct of a sexual nature with students, and conduct by faculty with students that otherwise crossed appropriate emotional or physical boundaries, extending back to the earliest reports received.
  • Outcome:  The school released our 60-page report on the investigation, which identified credible reports of misconduct involving eight faculty members that occurred between the mid-1970s and 2008. Our report also described the school’s contemporaneous knowledge of and responses to the misconduct of all eight faculty members and included a discussion of the cultural context in which the misconduct occurred. Importantly, the report noted that the school has taken significant steps in the last decade to address faculty misconduct and to protect its students.

(7) Research Integrity and Administration

  • Issue: A public university recruited a faculty member to lead a 20-year old research program that was a coordinating center for nationwide human-subject research studies funded by the federal government and private sponsors. After a few years, the faculty member tried to move the entire program, including the program’s director, staff, computer system, research database, and sponsor relationships to a newly formed “institute” under the auspices of a private university that promised a higher salary.
  • Action: Representing the public university system’s governing board, we filed a lawsuit and obtained a preliminary injunction prohibiting the faculty member and the private university attempting the takeover from exercising management and control over a key computer system and research databases. The co-opting university engaged in an aggressive litigation and public relations campaign, denying any wrongdoing, falsely accusing the public university of interfering with medical research, and contending that no damages accrue from a public university’s loss of a research program that generated no profits.
  • Outcome: The Crowell & Moring team defeated multiple pre-trial challenges, and got the case set for a jury trial that would coincide with proceedings to hold the co-opting university and faculty member in contempt of the injunction. The private university’s leaders who had condoned the co-opting were forced to resign, and on the eve of trial, it agreed to settle by making a public apology and paying the public university $50 million.

View More

"K-12 Cybersecurity Act of 2021 Launches Initiative to Combat Increasing Cyberattacks on Schools," (October 19, 2021). Contacts: Kate M. Growley, CIPP/G, CIPP/US, Laurel Pyke Malson, Garylene (Gage) Javier
Client Alert/Newsletter
"Part 2 - Higher Education and the Biden Administration’s Priorities: Are there significant changes ahead?" Crowell & Moring Webinar (February 16, 2021). Presenters: Kate M. Growley, Laurel Pyke Malson, Preston L. Pugh, Tyler A. O'Connor, Suzanne E. Rode, and Eli Berns-Zieve.
Speech/Presentation
"Part 1 - Higher Education and the Biden Administration’s Priorities: Are there significant changes ahead?" Crowell & Moring Webinar (January 19, 2021). Presenters: Amanda Shafer Berman, Caroline E. Brown, Astor Heaven, Laurel Pyke Malson, Rebecca L. Springer, Suzanne E. Rode, and Eli Berns-Zieve
Speech/Presentation
Kiel, et al. v. The Regents of the University of California, et al.: Major Takeaways from a California Court Decision Upholding a Flu Vaccination Mandate and Implications for the COVID-19 Vaccine (December 22, 2020). Co-Authors: A. Marisa Chun, Laurel Pyke Malson and Suzanne E. Rode.
Publications
"Department of Education Issues Notice "Clarifying" its Authority to Enforce Section 117 Reporting Requirements," (November 23, 2020). Contacts: Laurel Pyke Malson, Kate M. Growley, CIPP/G, CIPP/US, Eli Berns-Zieve
Client Alert/Newsletter
Crowell & Moring Represents University of California in Suit against Department of Homeland Security over International Student Directive (Jul.16.2020)
Firm News/Announcement
"DoE’s New Title IX Regulations: What School Administrators Need to Know," Regulatory Alert (May 13, 2020). Contacts: Amanda Shafer Berman, Laurel Pyke Malson, Aryeh S. Portnoy, Eli Berns-Zieve
Client Alert/Newsletter
"Five Considerations as You Prepare for the Release of the Final Title IX Regulations," (May 4, 2020). Contacts: Amanda Shafer Berman, Laurel Pyke Malson, Aryeh S. Portnoy, Rebecca L. Springer, Eli Berns-Zieve
Client Alert/Newsletter
"Give Us A Break: Students Filing Tuition Refund Class Actions Against Universities Over COVID-19 Disruptions," (April 14, 2020). Contacts: Laurel Pyke Malson, J. Daniel Sharp
Client Alert/Newsletter
"Foreign Gifts and Contracts Reporting: Increased Compliance Risk for Higher Education," Crowell & Moring Webinar (April 9, 2020). Presenters: Laurel Pyke Malson, Amanda Shafer Berman, Nathiya Nagendra, and Eli Berns-Zieve.
Speech/Presentation

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Crowell & Moring LLP is an international law firm with offices in the United States, Europe, MENA, and Asia that represents clients in litigation and arbitration, regulatory and policy, and transactional and corporate matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation and government-facing matters, as well as its ongoing commitment to pro bono service and diversity, equity, and inclusion.

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