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HIGHER EDUCATION

Rapid changes are happening in Higher Education. Institutions are moving beyond the traditional role of education and research to become major employers, economic engines and places of debate and community focus. Education leaders are under intense pressure to perform. Like it or not, the issues affecting the broader world find their way into the life of the college or university.

Our approach

With relationships covering more than 140 institutions around the globe, we understand the demands you face.

Higher education solutions aren’t one-size fits all.

Every institution is unique, every challenge is unique and every solution requires the integration of a wide array of legal disciplines, with many elements unique to the fabric of American higher education. From corporate governance matters to privacy rights, we have the interdisciplinary team with collective knowledge of the dynamics and players unique to the sector.

We are at the center of it all—and have been for over a century. We help you navigate the evolving issues and support the pursuit of your institutional missions, providing the answers to keep your business moving forward.

We work with

Research universities—from an internationally renowned research facility to some of the top U.S. research institutions in the country

Public universities—from one of the nation’s leading public universities to a large state university on strategic government relations and public policy services

Small private colleges—from a small private college on a data breach to a small private university on a class action suit

Professional schools—from a technical design and engineering school to an institute of technology

Medical schools—from a large university medical school to major teaching hospital

Schools of the performing and visual arts—from museums and libraries affiliated with colleges and universities to charitable foundations and organizations, galleries, dealers, artists, corporations, collectors, foreign governments and financial institutions and institutions of the arts

Recent Experience

We support our college and university clients’ missions and help them succeed by offering a deep bench of service areas including: environmental health and safety, tenure disputes, employee benefits, grants and contracts, investments, energy, student discipline, corporate governance, civil rights/affirmative action policies, tax-exempt financing, charitable giving and fundraising, restricted fund management, student privacy rights, student housing, intercollegiate athletics, construction litigation, immigration, labor, employee benefits, intellectual property and technology transfer, export controls, economic sanctions, FCPA, government contracting, government relations, renewable energy tax credits, protection of human subjects in research, real property and land use management, museums and libraries, medical and professional schools, health services institutions, residency training programs and academic medical centers.

  • Construction projects and litigation: multi-campus expansion—We represented one of the oldest nonprofit owner/operators in the Boston area. We were instrumental in its growth from a single campus into a multi-campus seniors health system via acquisition, re-development and bond refunding transactions, as well as successfully handling myriad operations-generated legal matters.
  • Energy: conversion of power facility—We advised a university on matters relating to the conversion of its natural gas-fired cogeneration power facilities located at the site of its campus to burn landfill gas. The project involved the construction of a pipeline from the university to the landfill site, as well as a landfill gas processing plant to purify the landfill gas. Nixon Peabody attorneys structured the transaction, provided advice relating to the contract between the university and the owner of the landfill and advised on financing-related issues.
  • Environmental health and safety: environmental compliance self-assessment—When the U.S. Environmental Protection Agency (EPA) launched its environmental compliance enforcement initiative against colleges and universities, we worked with a private university to design and implement a self-assessment of compliance. Nixon Peabody attorneys then helped the university develop and implement a corrective action plan to bring itself into compliance. We helped to prepare an inspection readiness manual and procedures for addressing regulatory inspections and developed and presented a training program to educate internal resources (for faculty with lab responsibilities as well as safety and maintenance personnel) about applicable regulatory requirements and how to institute practical procedures to ensure ongoing compliance and risk prevention. The university needed assistance in the negotiation and implementation of a voluntary compliance audit agreement that resolved their potential liability for compliance issues. Our attorneys also addressed the issue of student teachers, as well as assisted with a range of other potential issues, such as monitoring of contractors and subcontractors, property management considerations (asbestos, PCBs, mold) and hazardous waste management.
  • Export controls, economic sanctions and the FCPA: compliance programs and training—We have advised universities, colleges, research facilities and many companies (large and small) in connection with FCPA and export control compliance programs and training.
  • Graduate medical education & accreditation—Nixon Peabody has been representing medical schools, academic medical centers, residency training programs and institutions involved in medical education for more than 30 years. Richard Minicucci heads Nixon Peabody’s Graduate Medical Education practice and is known nationally and internationally for his experience with accreditation matters. He has represented many of the world’s elite medical institutions.
  • Government contracting: government relations and congressional lobbying—Our team assisted a major public university with government relations and congressional lobbying for certain earmarking. In addition, we are representing a large public university with developing funding support for new technology labs and projects and a university system in developing strategies for addressing major infrastructure projects. This includes strategies for funding support of these projects.
  • Government relations and public policy: 2020 strategic plan—Nixon Peabody attorneys are assisting a state university’s Office of the President with advice and comprehensive strategic government relations and public policy services to aid the university in its larger and complex mission interfacing with federal, state and local governments. Most notably, we provided the president with guidance and direction for their 2020 plan, the university’s plan to become sharper in both focus and physical appearance as well as academically stronger than ever before. With our help, this plan positions the university as one of the top research universities in the country.
  • Intercollegiate athletics: college athletic conference—We represented a college athletic conference serving as primary intellectual property counsel, including protection of trademarks and obtaining various domain names from cybersquatters. We also conducted a thorough governance and compliance review for the client and made recommendations related to possible changes in its form of organization and methods of governance.
  • Land use and development: campus expansion—We represented a technical design and engineering college in connection with its acquisition and disposition of parcels of land and easement rights in connection with the expansion of its campus.
  • Privacy rights: recovering from data theft—A university administrator’s laptop containing financial and identifying information for a large group of students was stolen. Working with the institution’s counsel and its IT professionals, we reviewed the possible risk exposure and disclosure requirements, providing a quick response plan to meet various state legal requirements. We then offered a comprehensive risk management approach for a data privacy breach, consistent with the institution’s needs and capabilities.
  • Real property and leasing: relocation of law school—We represented the largest urban university in the U.S. in connection with the acquisition, development and financing of a commercial condominium unit for the relocation of its law school and the development and financing of student housing facilities on multiple campuses, including advice in structuring transactions, selecting bond issuer, drafting and negotiation of conveyance documents, negotiation of design and construction documents, negotiation of development and management agreements, review and negotiation of financing documents and tax advice.
  • Renewable energy tax credits: helping a college become energy independent—One of the largest community college districts in the U.S. planned to install solar facilities on nine of its campuses. In order to take advantage of favorable tax incentives, which would significantly reduce up-front costs, the institution faced complex structuring challenges as a result of its nonprofit status. Representing various investors interested in partnering with the institution, our attorneys vetted several structural iterations of the transaction, in each case analyzing the availability of the tax benefits, the integrity of the lease and/or PPA and the value of the financing and assets. In the end, the parties implemented a leasing model, where the investor will own the solar facilities and lease them to the institution for 20 years.
  • Research facilities development: supercomputing center—We represented a consortium of five major research universities in coming together to create a supercomputing center. The work involved the formation of a new entity to operate the facility and an innovative use of new markets tax credits to lower the costs of financing. The joint venture structure incorporates the operational aspects of the facility, including intellectual property licensing policies and joint use agreements. Working together with each of the university counsels, provosts for research and ultimately their presidents, we were able to fashion a structure to serve each of the institutions into the future and are honored to continue to serve as general counsel.
  • Safety and Security on college and university campuses—We have the unique insider knowledge of the former Middlesex County (Mass.) District Attorney and First Assistant U.S. Attorney for the District of Massachusetts, who, while serving as Middlesex County District Attorney DA, bore the ultimate responsibility to ensure the public safety of students in Middlesex County—home to twenty-six colleges and universities. He implemented a specialized safety and security training program for all college police chiefs in this college consortium, and was able to change the landscape toward sexual assault cases and Title IX violations by highlighting the ways in which the new guidelines provided improved tools for this process.
  • Securitization of IP portfolios: monetization royalty stream—We represented a major California university in the monetization of its royalty stream for an anti-cancer drug, initially working with the major buyer of royalty streams, but ultimately selling to the major pharmaceutical manufacturer of the drug in return for a large upfront payment and two success payments depending on future product sales. We also represented university inventors of the HPV vaccine in the sale of their royalty interests due from their university.
  • Student housing: residential hall—Represented a college in connection with the issuance of its $14,250,000 Tax-Exempt Revenue Bonds, Series 2011, of which the proceeds were used to refinance a residential hall and the campus center.
  • Student matters: fraternity housing—Represented a university and worked with its governing board on the planning and execution of a policy to withdraw recognition of fraternities after several widely publicized incidents of wrongdoing. We dealt with concerns of alumni, re-dedication of fraternity housing and the successful defense of a lawsuit arising out of the action.
  • Sustainable energy: sustainable building—We represented with groups at several universities on new and retrofit projects that in time will pay for themselves in energy savings and tax incentives. For example, one university client sought to build a new science hall but wanted to ensure that it would adhere at the same time to the university’s sustainability goals. With this in mind, Nixon Peabody worked to find a solution that ultimately included LEED®-compliant conservation easements associated with the project. One such easement has been credited with saving the last unspoiled habitat of an endangered species.
  • Tax exempt and conventional financing—Nixon Peabody attorneys have represented several universities in restructuring their tax-exempt debt after the auction rate market ceased to function, as well as a university that refinanced several projects with synthetic fixed-rate refunding bonds.
  • Title IX: changing and protecting student lives under Title IX—We have significant jury trial and appellate trial experience representing educational institutions before federal and state courts in Title IX cases. Our experience includes the defense of institutions in claims arising out of alleged faculty-on-student and student-on-student sexual harassment or assault. We have also advised institutions on the remedial measures and investigative procedures to ensure Title IX compliance when an alleged incident is reported. We have counseled our educational clients on the proper steps in student disciplinary processes and defended institutions in lawsuits brought by students challenging the disciplinary determinations.
  • IP and technology transfer—Nixon Peabody attorneys have conducted due diligence and valuation for a public university’s vaccine portfolio, investigated and resolved inventorship disputes between collaborating universities and between universities and private parties, worked with university general counsel regarding intellectual property provisions for a multicenter grant application, provided advice regarding university faculty intellectual property rights and have provided patent application, preparation and prosecution for 10 top-tier research institutions.
  • IP licensing: sponsored research agreement for hospital and university—We negotiated a sponsored research agreement with a hospital affiliated with a leading private university to allow for the birth of a start-up biotechnology company. Nixon Peabody attorneys successfully resolved issues arising under relevant conflicts of interest policies and clarified the expected rights in the technology. We also structured payment schedules over a specific time period to fund the university’s research.
  • Working with entrepreneurs and start-ups—Nixon Peabody represents a start-up company developing live-attenuated viral vaccines at a business incubator located at a well-known university. We met with the founders to better understand their goals, assisted them with organizing their business and drafted shareholder, nondisclosure, invention assignment and employment agreements. Given our experience with entrepreneurs and start-up businesses, as well as venture capitalists and private equity funds, we are confident that this client has eliminated legal roadblocks that could stand in the way of obtaining necessary funding and hinder success, both for the client and the university to whom they would pay royalties.

Media Clips

  • Overhaul Coming in July for Nonprofit Regulations
    Buffalo Business First | January 17, 2014
    Partner and leader of the firm’s Nonprofit Organizations practice Mike Cooney discusses the New York State Nonprofit Revitalization Act.
  • Attorneys Applaud Overhaul of Nonprofit Law for Cutting Red Tape
    New York Law Journal | December 20, 2013
    Partner and leader of the firm’s Nonprofit Organizations practice Mike Cooney, Rochester counsel Anita Pelletier, and Rochester partner and president of the New York State Bar Association Dave Schraver discuss the New York State Nonprofit Revitalization Act signed into law by Governor Cuomo.
  • Make Sure Research Funding Steers Clear of Tax Traps
    Technology Transfer Tactics | August 1, 2013

    Partner and leader of the firm’s Higher Education and Nonprofit Organizations practice Mike Cooney discusses avoiding adverse tax consequences arising out of sponsored and commercial research activity.

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  • Nexpert Column: Building a Foundation of Innovation
    Democrat and Chronicle | January 6, 2013

    Partner and leader of the firm’s Nonprofit Organizations and Higher Education practices Mike Cooney authored this column discussing program-related investments by charitable foundations.

  • Privatized Student Residences to Sprout in the Near Future
    Rochester Business Journal | December 21, 2012

    This article focuses on privatized student housing and, while it’s not widespread in the Rochester area as of yet, Rochester Real Estate partners Jeff Wright and Bruce Baker are featured in the article discussing how the Rochester area higher education community is knowledgeable and sophisticated in its understanding of various structuring options for developing and financing this type of housing.

  • Higher Ed Outsourcing Student Housing
    Long Island Business News | November 16, 2012

    Real Estate partner Jeff Wright, co-leader of the firm’s Student Housing team, discusses the privatization of student housing in this feature article.

  • Optional Special Selection and Recruitment Green Cards: Who Is a 'Teacher'?
    New York Law Journal | August 6, 2012

    This bylined article coauthored by Rochester immigration partner Patti Morrison and Boston immigration associate Courtney New focuses on college and university faculty appointees and their eligibility for Optional Special Recruitment and Selection labor certifications.

Ideas

Bipartisan legislation on sexual assault on college campuses: what you need to know
Government Relations Alert | August 7, 2014

Update on Fisher v. University of Texas—an affirmative action win?
Higher Education Alert | July 18, 2014

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What's trending in data privacy & security
Privacy Alert | July 3, 2014

After the Department of Education Releases the Title IX List, Senator McCaskill Readies Legislation
Higher Education Alert | May 29, 2014

NLRB determines that scholarship football players at Northwestern University are "employees" pursuant to the National Labor Relations Act
Employment Law Alert | March 27, 2014

The START-UP NY Program—New York State approves eight eligible "tax-free" zones
New York Law Alert | March 24, 2014

Webinar Recording: Envisioning a Privatized Mixed-Use College Campus Project
Originally recorded February 27, 2014 | March 3, 2014

Webinar Recording: Nonprofit Revitalization Act—What changed? What you should do.
Originally recorded January 7, 2014 | January 8, 2014

START-UP NY: overview of implementing regulations and next steps for colleges, universities and businesses
New York Law Alert | November 1, 2013

Ninth Circuit applies free speech protection to a professor's criticisms of public university
Higher Education Alert | September 18, 2013

Newest waste ban in Massachusetts: commercial organic material
Environmental Alert | July 19, 2013

The START-UP NY Program — Developing College Campuses as Engines of Economic Expansion
New York Law Alert | June 28, 2013

The aftermath of Fisher: New emphasis for strict scrutiny of race conscious programs
Higher Education Alert | June 27, 2013

Maintaining confidential academic research in the face of a criminal investigation—the First Circuit speaks
Higher Education Alert | June 19, 2013

Gov. Andrew Cuomo unveils major economic development initiative offering tax benefits to businesses operating on or near select college and university campuses
New York Law Alert | May 30, 2013

Webinar Recording: The Case for Privatization of Student Housing, Part Four: Sustainable Design and Green Building Issues in the Campus Context
Originally recorded May 14, 2013 | May 20, 2013

Webinar Recording: The Case for Privatization of Student Housing, Part Three: Negotiating the Management Agreement—Student Residential Life Issues
Originally recorded February 27, 2013 | March 6, 2013

Webinar Recording: The Case for Privatization of Student Housing Part Two: Ownership, Development and Financing of Privatized Student Housing—Three Case Studies
Originally recorded December 11, 2012 | December 14, 2012

Federal district court upholds university libraries' digitalized copying and sharing of copyrighted works
Higher Education Alert | November 7, 2012

Webinar Recording: The Case for Privatization of Student Housing, Part One: Market Overview and Structuring Options
Originally recorded October 16, 2012 | October 22, 2012

Webinar Recording: Leveraging Philanthropic Capital to Fund Life Science Companies and University Spin-outs
Originally recorded September 24, 2012 | September 26, 2012

Optional special selection and recruitment green cards: Who is a college or university "teacher?"
Immigration Law Alert | September 19, 2012

The Second Circuit addresses what qualifies as "Athletic Participation Opportunities" under Title IX
Higher Education Alert | September 12, 2012

Balancing confidentiality under FERPA and the public's right to know: A divided Iowa Supreme Court speaks
Higher Education Alert | August 9, 2012

Optional Special Selection and Recruitment Green Cards: Who Is a ‘Teacher'?
New York Law Journal Special Report: Immigration Law | August 6, 2012

Webinar Recording: What's your future bring? Nonprofit regulation in New York
Originally recorded June 5, 2012 | June 11, 2012

A warning to university researchers: Institution and its professor charged with felonies for fatal laboratory chemical fire
Higher Education Alert | February 28, 2012

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Press

Events

Privacy and Security 101: Protecting high-risk data at private schools
April 3, 2014 | Providence, RI

Nonprofit Health: Moving forward in the era of managed care
March 13, 2014 | Jericho, NY

New York State Nonprofit Revitalization Act Roadshow: What changed? What you should do.
March 5, 2014 | Jericho, NY

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New York State Nonprofit Revitalization Act Roadshow: What changed? What you should do.
March 4, 2014 | New York, NY

Webinar: Envisioning a Privatized Mixed-Use College Campus Project
February 27, 2014

New York State Nonprofit Revitalization Act Roadshow: What changed? What you should do.
February 13, 2014 | Albany, NY

New York State Nonprofit Revitalization Act Roadshow: What changed? What you should do.
February 5, 2014 | Buffalo, NY

New York State Nonprofit Revitalization Act Roadshow: What changed? What you should do.
February 4, 2014 | Rochester, NY

Your Responsibilities as a Nonprofit Board Member or Chief Executive
January 28, 2014 | Boston, MA

Webinar: Nonprofit Revitalization Act—What changed? What you should do.
January 7, 2014

Title IX: Challenges and Opportunities for Colleges and Universities
November 14, 2013 | Boston, MA

Webinar: The Case for Privatization of Student Housing, Part Four: Sustainable Design and Green Building Issues in the Campus Context
May 14, 2013

Webinar: The Case for Privatization of Student Housing, Part Three: Negotiating the Management Agreement—Student Residential Life Issues
February 27, 2013

Webinar: The Case for Privatization of Student Housing Part Two: Ownership, Development and Financing of Privatized Student Housing—Three Case Studies
December 11, 2012

Webinar: The Case for Privatization of Student Housing, Part One: Market Overview and Structuring Options
October 16, 2012

Webinar: Leveraging Philanthropic Capital to Fund Life Science Companies and University Spin-outs
September 24, 2012

Webinar: What's your future bring? Nonprofit regulation in New York
June 5, 2012

Legal Issues in Museum Administration
March 19, 2012

40th Annual ALI-ABA Course of Study: Legal Issues in Museum Administration
March 19, 2012 | San Francisco, CA

Emerging Issues for Nonprofits: Staying on Top of Potential Changes in Federal and New York Law Affecting Nonprofit Corporations
February 29, 2012

Legal Issues in Higher Education
February 8, 2012

Chief Executive Review and Compensation: Safeguarding your board and your chief executive
November 17, 2011

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Higher Education