These legal issues should be on college business executives’ radars

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AURORA, Colo. — College business leaders will discuss a long list of issues with their general counsels as colleges continue to grapple with the fallout from the coronavirus, U.S. Supreme Court rulings and an unstable sports landscape, said panelists during a session at the National Association of College and University Business Agents’ annual meeting this week.

“The partnership between finance and business leaders and legal teams on our campuses is absolutely essential,” said Ona Alston Dosunmu, President and CEO of the National Association of College and University Lawyers.

Below are some of the legal issues discussed by panelists during the Sunday session and the questions they raise for business executives, lawyers and other higher education administrators.

Remote work

It’s no secret that ideas and expectations about work have changed since employees were sent home to work remotely during the pandemic. Now, many balk at the idea of ​​returning to the office full-time.

Meeting this challenge means working in many different offices on campus, the panelists said. Case managers will need to work with general counsel, risk managers, human resources administration, chief information officers, real estate offices and equal opportunity offices.

How can institutions manage teleworking for different professions? How many employees do you need to add to manage a remote workforce? Who decides whether to grant remote work requests – a department chair or a dean?

And then there are the questions about where employees work. If your employees are in a different state, is your institution subject to the jurisdiction of that state and what does that mean for its liability? Do you need to register to do business in the states where the employees are located? What are the rules for workers’ compensation or vacation pay?

Many of these questions have the same answer: it depends.

“This is one of the most complex areas I’ve encountered in my career in higher education,” said Eileen Goldgeier, vice president and general counsel at Brown University. “It covers so many different areas, from your rented space — you might be a tenant and a landlord — to equity issues.”

Abortion

Campuses in abortion-banning states may seem to have the most immediate questions to answer. Will they dispense plan B drugs, emergency contraception? What happens when a university’s academic medical center, medical school, or nursing school is in a state where the law conflicts with accreditation standards for mandatory education?

Will student organizations use fees charged by their colleges to transport students to other states for abortions? Will colleges be held responsible for aiding and abetting? What do health insurance and other insurance policies say?

“I want to focus specifically on your defense and indemnification policies,” said Timothy Lynch, vice president and general counsel at the University of Michigan. “Suppose you are in a forbidden state. If you have students who help other students or faculty members who engage in abortion rights, help students, or lobby, your defense and indemnity insurance programs will provide them with they provide protection? Will you provide a defense lawyer, for example, if they are accused of being prosecuted? »

The issues are also complex for institutions that have employees working in different states. And colleges in states where abortion is legal will need to think about interstate travel. What kinds of records do colleges create that might be searchable in court, even across state lines?

“These are issues that are very difficult, but the stakes are high for faculty members, for providers, for students,” Lynch said.

Athletics

While the conference realignment dominoes are set to fall after the Big Ten poached the University of Southern California and the University of California, Los Angeles, changes continue to occur in college athletics. But the field was already in turmoil due to new rules allowing athletes to profit from their names, images and likenesses and a Supreme Court ruling that the NCAA cannot limit education benefits for athletes. college athletes.

Even institutions that lose money on athletics will feel compelled to compensate students, Lynch said. Are they only going to try to pay athletes in the revenue-generating sports of soccer and basketball? This would likely trigger issues under Title IX, the federal law prohibiting gender discrimination in educational institutions.

As for name, image and likeness, how will colleges protect their trademarks? Will they allow college athletes to use an institution’s brand image to make money, and under what circumstances? How do booster collectives formed to encourage students to enroll in a particular college fit in with NCAA rules prohibiting pay-to-play?

Pandemic fallout

After colleges sent students home in the spring of 2020, students across the country filed class action lawsuits against their colleges seeking reimbursement or payment of tuition and fees, alleging breaches of contract. While some have been settled with student payments and others are still in court, the colleges have been successful in getting judges to dismiss many of the claims.

Even current college administrators can use the cases as a reminder to review academic papers. What language should be in housing and supply contracts?

And if future waves of the coronavirus — or other infectious disease — cause colleges to consider new vaccination requirements, how will they handle religious exemptions?

“All of these things are always evolving,” Lynch said.

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