Higher Education

Varnum has represented higher education clients in mediations and arbitrations in both unionized and non-unionized settings utilizing federal or private mediators. We are also experienced dealing with faculty associations in negotiations on behalf of its members.

We have arbitrated or mediated many disputes related to higher education, including release of faculty, denial of tenure, denial of promotion and rejection of policies. In the majority of cases, we have been successful in negotiating a resolution that meets the administration’s goals and is acceptable to the those bringing the grievance. Where possible, we use neutral third parties or a privately-selected individual from the local community.

Our higher education attorneys have advised clients on the optimal structuring of joint ventures and the tax implications of such arrangements. We have assisted in the negotiation and documenting of numerous affiliation agreements with educational business partners. In addition, we have further assisted in the negotiation of “win-win” contractual arrangements between higher education institutions, their vendors and other business partners.

We work with the administration of our higher education clients to ensure processes, policies and procedures – involving hiring, promotion, discipline, termination, admission and expulsion – are both aligned with the mission and goals of the organization and comply with laws protecting civil rights.

We regularly assist clients with defense against claims filed with the Michigan Department of Civil Rights, OCR and/or EEOC on the full spectrum of civil rights issues including age, race, religion, gender and disability matters. We also deal with free speech, academic freedom and privacy issues involving faculty, staff and students.

We review, revise and draft policies for all the issues listed above, advise on compliance and handle the process of civil rights investigations on various issues such as Title IX, Section 504 and Clery. We also have experience in advising clients on handling charges alleging discrimination based on LGBTQ status. Many higher education institutions have processes in place to promote diverse faculty and student populations. We routinely advise on these processes and defend clients against reverse discrimination claims.

We represent or have represented community colleges, colleges and universities in a wide range of construction matters, including:

• Claims related to delays
• Extra work
• Productivity impact
• Defects
• Construction lien and bond claims
• Contract drafting and negotiation
• Contract disputes and claims involving contractors, suppliers and subcontractors

We also work with architects in the drafting of RFPs, legal issues involved in state oversight, bid issues (including qualifying low bidders and evaluation of different bid packages) and representing the client in bid disputes.

Varnum has experience in the various stages of contractual relations from negotiation through drafting, review, standardization, compliance with regulatory requirements and the settling of disputes including breach of contract. These matters include virtually every business arrangement that higher education institutions enter into, including:

• Contracts for professional services
• Leases
• Employment agreements
• Agreements for the acquisition of facilities and equipment
• Design and construction agreements
• Technology transfers
• Relationships with other schools

We also have specific skill in avoiding pitfalls in the acquisition of computer software and hardware, as well as the subcontracting of support services.

We are experienced in assisting educational institutions in times of crises. We have helped clients deal with incidents of alleged sexual assault and sexual misconduct, shootings and disclosure of confidential information. As soon as we are notified of an incident, we assist in assembling the appropriate response team, including the institution’s personnel, outside counselors and other professionals as required. Our work typically involves providing counsel regarding risk and liability, drafting required documents and notices, fielding questions and engaging/working with a public relations firm.

We draft and review digital, marketing and privacy compliance policies and best practices, and routinely counsel clients on a broad range of compliance and regulatory areas, including privacy and data security.

We regularly represent clients in matters of libel, slander and defamation. Our experience includes the successful defense of a major Michigan university in a civil defamation matter regarding right of privacy in cell phone data. Additionally, we are experienced in privacy matters, particularly in the Internet, computer and data breach areas. We recently counseled university leadership on a matter involving potential improper disclosure of confidential information where employee information was inadvertently emailed to someone other than the intended recipient.

We have significant experience in e-commerce law including e-commerce contracts (terms and conditions, terms of service, EULAs) and privacy policies for both SaaS and mobile. We have advised clients on:

• Anti-spam regulations
• Electronic signatures
• Intellectual property ownership and licensing
• User generated content
• Service provider immunity under Section 230 of the Communications Decency Act
• Online advertising and marketing

In addition, we counsel clients in electronic payment and related data security matters, as well as state and local tax matters related to e-commerce.

Varnum attorneys have substantial experience providing guidance to clients on all issues relating to ADA compliance for the student/special education population and staff. Our attorneys advise and assist with issues relating to special education students, including, but not limited to MDE, OCR and MDCR complaints, due process hearings and disciplinary situations.

We routinely advise on laws and issues specifically associated with higher education, such as:

• Title IX
• Clery Act
• VAWA
• ADA/504
• FERPA
• Tenure and promotion
• Academic freedom
• Freedom of speech
• Risk and responsibility
• Campus safety

We review, revise and draft policies for all of the issues listed above, advise on compliance and handle the process of civil rights investigations on various issues such as Title IX, Section 504 and the Clery Act. Further, we proactively look at changes in the law and advise our clients of potential impacts, including how the OCR assesses and enforces various aspects of the law.

Varnum has robust experience in all health care needs of higher education institutions, including drafting affiliation agreements between educational institutions and the medical organizations that provide internships to students. We have also worked with higher education institutions on legal matters relating to the direct provision of health care services to students.

Our benefits practice provides legal assistance with health care plans, including high deductible health plans, health savings accounts, health reimbursement arrangements, and compliance with Health Care Reform, COBRA and HIPAA, as well as structuring wellness programs.

Varnum is experienced in conducting internal investigations for colleges and universities, whether initiated by government inquiry or by administration. During an investigation, we interview key members of administration, faculty, staff and the student body involved in the matter, and review and analyze critical evidence to determine whether violations have been committed. We also identify any gaps in the institution’s compliance plans. Conducting an investigation helps the institution identify potential problems and demonstrates the institution’s commitment to remedying them.

Always client focused, our goal is to achieve the most efficient and favorable resolution for the client—whether it is a declination of prosecution, defending the institution or individual (s) in court, or arriving at a settlement.

In addition, we provide training in areas where faculty and/or staff may not fully understand their obligations with respect to laws specifically associated with higher education, including the issues, policies and processes surrounding these laws. For example, one of our attorneys was the lead counsel in a significant independent investigation into a public university’s response to a tragic on-campus murder and its compliance with the Clery Act. His public report received national acclaim and recognition. Subsequently, he has delivered numerous presentations to college and university associations across the country on the Clery Act, campus safety and security matters.