Seth Orkand and Sabrina Galli Co-Author Boston Bar Journal Article on Fluctuating Title IX Guidance

Government Enforcement and White-Collar Defense Team co-chair Seth B. Orkand and Business Litigation Group member Sabrina M. Galli co-authored the article, “Recent Litigation Provides Guidance as Schools Await New Title IX Regulations,” published in the July 27, 2023 Summer issue of the Boston Bar Journal. While revisions to Title IX regulations are expected from the Biden administration this October, Title IX cases have continued in federal court. Approximately fourteen Title IX cases have been filed in the District of Massachusetts since this publication’s last update in 2020 and the First Circuit has decided approximately seven of them. The attorneys explain that while Title IX guidance and regulations continue to fluctuate, there are two theories a plaintiff may assert: selective enforcement and erroneous outcome. Regardless of which theory a plaintiff pursues, both require showing and proving a gender bias. While numerous cases have been dismissed on the basis of Title IX claims, a number have proceeded on claims of breach of contract, highlighted in the attorneys’ discussion of Doe v. Stonehill College and Doe v. Williams College. The attorneys conclude that while schools await October revisions to Title IX regulations, courts “can be expected to require schools to follow their procedures, provide respondents the opportunity to appropriately review or respond to evidence, and avoid undue influence by staff who are not decision makers in the Title IX processes.” Read the article.

Kate Dion, Brian Freeman and Mallori Thompson Discuss Strategies for Dealing with Mold in Dormitories in American School & University Article

Education Industry Team Chair Kathleen E. Dion, Environmental, Energy + Telecommunications lawyer Brian C. Freeman and Business Litigation Group lawyer Mallori D. Thompson co-authored the article “Breaking the Mold – Best Practices by Educational Institutions to Limit Mold Exposure and Loss,” published in American School & University, June 8, 2023. In the article, the authors point out that while “mold is one of the oldest life forms on the planet,” there are actually very few clear regulatory definitions of acceptable versus unacceptable levels of mold. “Given that, plus the different types of mold as well as different levels of personal sensitivity, determining the risk from mold exposure can be complex.” While the likely first response to any mold complaint is to initiate immediate testing, the authors suggest that “questions regarding the process, scope, and type of testing raises issues that must be addressed...The time and costs required for testing and the potential value (or not) of test results should also be considered against prevention, detection, and abatement strategies.” Read the article.

Kathryn Rattigan Advises About Drones on Campus for Security magazine

Data Privacy + Cybersecurity Team and Education Industry Team member Kathryn Rattigan authored the article, “Educational institutions should consider devising a drone policy,” published in Security magazine on January 30, 2023. While the Federal Aviation Administration (FAA) has set a standard for drone regulation, many smaller localities have issued stricter rules. With the continuing evolution and sophistication of drones, colleges and universities should consider developing policies that address “the three types of operators flying [drones] on college campuses: commercial, recreational and educational or classroom/research operators,” and “vesting drone policy and enforcement responsibility in a single position.” Drone policies should require compliance with FAA regulations specific to the category of drone operator and should be updated to reflect changes made by the FAA. Kathryn suggests that, “Now is the time to create these policies and infrastructure to allow for safe and educational use of drones on your campus.” Read the full article.

Litigation Section Lawyers Author Law360 Article on the Future Reach of Affirmative Action Ruling

Seth B. Orkand, Joshua L. Coker and Mallori D. Thompson, members of the firm’s Litigation Section, authored the article “What May Shape The Scope Of Affirmative Action Ruling,” published by Law360 on November 6, 2022. The “Expert Analysis” article examines the affirmative action cases Students for Fair Admissions v. University of North Carolina and Students for Fair Admissions v. President and Fellows of Harvard College, dating from November and February 2021, respectively, following oral arguments presented before the U.S. Supreme Court. The authors conclude that “the fate of race-conscious admissions in higher education is no longer in any real doubt." The two cases closely resemble the most recent attempt in Fisher II (2016) to prohibit university admissions from considering race, in which the court’s then-majority determined that consideration of racial minority status was constitutional because the educational benefit of diversity in collegiate environments was 1) a sufficiently measurable compelling interest and 2) there was not a workable, race-neutral alternative to achieve diversity. Since then, the composition of the court’s justices has shifted dramatically to the right. However, the authors note that “there appear to be divisions within the court’s conservative bloc that may shape the breadth of holdings for the cases’ common petitioner.” Read the article.

Lauren Sigg and Megan Naughton Author University Business Article on Hiring and Retaining International Talent

Immigration Group co-chair Megan Naughton and Partner Lauren Sigg co-authored the article, “Hiring and retaining talent: Immigration for educational institutions,” published in University Business on September 23, 2022. Recognizing that many institutions of higher education recruit talented faculty from around the world, the authors discuss a number of the most common nonimmigrant and immigrant options for colleges and universities, along with some considerations when determining and selecting the correct category. Among the options mentioned are the H-1B visa category – the most common nonimmigrant visa category for institutions of higher education – and the J-1 category, which allows foreign nationals to come to the U.S. temporarily and is commonly used in higher education for research scholars and professors. Read the article.

Kate Dion Quoted in University Business Article on Potential College Policy Pitfalls

Education Industry Team Chair Kathleen E. Dion was quoted in the article “Ready for the fall? 10 potential policy pitfalls college leaders must address this summer,” published in University Business on July 6, 2022. In the article, Kate highlights issues including cybersecurity, incident response, Title IX, COVID-19 procedures and mental health, among others. Kate said, “Now is a really great time to reflect on what happened during the past year. Use the opportunity to think about what went well, what could be done better, and what policies might have been implemented throughout the year that could be updated to better align with the university’s mission—initiatives like DEI and social justice.” Read the article.

Kathryn Rattigan Authors University Business Article on Ransomware Attacks in Higher Education

Data Privacy + Cybersecurity Team and Education Industry Team member Kathryn Rattigan authored the article, “Ransomware Attacks in Higher Ed: How You Can Protect Your Data and Mitigate Risks,” published in University Business on May 23, 2022. The article points out that educational institutions – and in particular colleges and universities – are among the most targeted by cybercriminals for ransomware attacks for a variety of reasons. They “possess a great deal of personal and sensitive information. For example, they routinely collect social security numbers and banking routing numbers of students, faculty, and staff. Additionally, many universities operate on-campus health clinics that maintain a trove of sensitive information. Research universities maintain confidential data relating to pending patents, research, and publications.” Kathryn indicates that “[a]t a minimum, universities should map their data (in particular, the sensitive or highly confidential, proprietary data) and conduct risk assessments to determine which systems are most vulnerable to compromise and which would cause the most damage in the event of a breach.” Read the full article.

Natale DiNatale and Emily Zaklukiewicz Co-Author University Business Article on Undergraduate Students Organizing Around the Country

Labor and Employment Group lawyers Natale DiNatale and Emily Zaklukiewicz co-authored the article, “Undergraduate student workers as union employees,” published in University Business on May 19, 2022. The article reviews how the National Labor Relations Board’s (NLRB) current position on whether graduate students have the right to organize under the National Labor Relations Act (NLRA) has spurred union organizing activity among undergraduate, student workers. Under the Trump administration, the NLRB failed to reverse the most recent precedent on the issue, Columbia University, 364 NLRB No. 90 (2016), which provides that student workers are included within the Act’s definition of an “employee.” As a result, labor organizing among graduate students has gained significant momentum in recent years and, most notably, within the last year. Importantly, that legal precedent not only allows graduate students to organize, but also appreciably implicates organizing rights among undergraduate student workers. In September 2021, the NLRB’s General Counsel issued a memorandum that identified certain athletes at academic institutions as employees under the NLRA and that also laid the groundwork for undergraduate students to form labor unions, engage in concerted activity, including strikes, without retaliation, and require their “employer,” universities, to bargain with their union representative. Recognition of student workers as employees under the NLRA has broad implications for academic institutions. Student organizing is a very real possibility that carries with it very real implications for colleges and universities. Colleges and universities should understand what union recognition and bargaining means for their institutions. Read the full article.

Kate Dion and Janet Kljyan Author Article on “Deadnaming” and Setting Policy for Preferred Name Usage

Education Industry Team Chair Kate Dion and Business Litigation Group lawyer Janet Kljyan authored the article, “Avoid ‘deadnaming’: How universities and colleges can get ahead of preferred name usage,” published on March 21, 2022, in University Business. The article covers challenges facing universities and colleges around the country from growing requests by students to identify themselves by a preferred or chosen name in place of the student’s legal name. The authors suggest that having a clear and thoughtful policy in place to address preferred name usage will help avoid “ad hoc or case-by-case determinations to grant such requests for a few reasons.” Universities and colleges may want to review a number of considerations as develop their policies, including: “(1) the logistics of establishing and utilizing a preferred name, (2) matters requiring the use of a legal name, and (3) identifying instances that may warrant rejecting a student’s request to use a preferred name.” Read the full article.

Ben Daniels Quoted in HBJ Article on University of Saint Joseph's Move to Co-Ed Undergraduate Programs

Business Litigation Group member, Ben Daniels, was quoted in the Hartford Business Journal article, “Four years after admitting men for first time, USJ sees steady undergrad enrollment growth” published on January 3, 2022. The article focuses on the challenges faced by lesser-known, all-women institutions related to declining enrollments and greater competition in recent years. Those market forces led West Hartford, Connecticut’s University of Saint Joseph (USJ) in 2018 to respond by admitting men in its undergraduate programs for the first time in its then-85-year history. One of the first challenges for USJ was simply getting the word out that the school would begin accepting men.

As the school began to explore the options it could employ, one answer was clear – athletics. Namely, legendary former University of Connecticut men’s basketball coach, three-time NCAA tournament champion, and member of the Basketball Hall of Fame, Jim Calhoun, who was hired by the university in 2018 to head its basketball program. “[USJ] focused on athletics in bringing Calhoun on,” said Ben, who has worked with higher education clients for more than a decade. “St. Joe’s promoted the men’s athletics program while also maintaining a focus on equity and inclusion and strong academics.” Read the full article here.

Kate Dion and Seth Orkand Present Webinar on Reopening College Campuses

Education industry team chair Kathleen E. Dion and member Seth  B. Orkand co-presented the R+C-hosted education webinar, "A Discussion on Reopening Campuses for the Fall Semester" on July 29, 2021. Joined by Meredith Ainbinder, Vice President and General Counsel at Emerson College and Destinee Waiters, Associate General Counsel at Suffolk University, the roundtable panel addressed numerous challenges that in-house counsel may face with students returning to campus in the fall and how members of the community may respond. Topics covered included whether or not policies on vaccines should be applied equitably to faculty and staff; if professors may be allowed to require masks in their classes; how schools will handle non-compliance with COVID-related rules and requirements; and addressing student mental health concerns with the addition of non-instructional wellness days.

Natale DiNatale and Emily Zaklukiewicz Author University Business Article on Adjunct Faculty Unionization

Labor Relations Group chair Natale V. DiNatale and member Emily A. Zaklukiewicz authored the article “NLRB still refining test for adjunct faculty unionization” published in University Business on June 8, 2021. The article highlights the increasing relevancy of whether adjunct faculty, and other non-tenure-track faculty, may organize with a labor organization. Natale and Emily reference the National Labor Relations Board’s (NLRB) recent decision in Elon University “as a reminder to private colleges and universities that adjunct faculty members have greater rights to organize, especially to the extent that the nature of their employment relationships keeps them uninvolved in the institution’s governance and decision-making committees.” Read the full article.

Kate Dion Quoted in Wall Street Journal Article on COVID-19 Health Information Privacy in Higher Education

Education Industry Team Chair Kathleen E. Dion was quoted in the article “Colleges Weigh Transparency Versus Privacy When It Comes to Covid-19 Data,” published in the Wall Street Journal on August 25, 2020. The article examines the “tug of war” between providing information and protecting identities, which creates a patchwork of reporting that some students say puts their health at risk. Kate says that because the law gives universities wide latitude for interpretation, schools disagree on what information is identifiable and who are appropriate parties. As a result, some schools appear to be changing their interpretations of the law as coronavirus cases spread. “’The policy that schools have really needs to take into account that there are individual facts and circumstances to each report of a Covid-19 outbreak,’ she said, pointing to the student population and relationships with local health departments.” Read the article.

Kate Dion Honored by Western New England University School of Law

Business Litigation Group lawyer Kathleen E. Dion was presented with the Ascending Alumni Award and the Distinguished Law Review Alumni Award from Western New England University (WNE) School of Law during the Annual Alumni Recognition Reception in Springfield, Massachusetts on October 4, 2019. The Ascending Alumni Award spotlights the achievements of new alumni who graduated with the past 10 years from the School of Law. Honorees have shown leadership in their chosen field and/or in the community, and they stand out from their peers in the drive and potential they have shown. The Distinguished Law Review Alumni Award is presented annually to a Law Review alumnus/na in recognition of outstanding professional accomplishments and/or contributions to the Western New England University School of Law. Read more and view photos in the press release.

Kathryn Rattigan Appointed to Stonehill College President’s Advisory Group

Business Litigation Group lawyer Kathryn M. Rattigan has been appointed to the President’s Advisory Group for Stonehill College, located in Easton, Massachusetts. The mission of the group is to complement the work of the College’s president and board of trustees by offering advice, guidance and recommendations on priority areas of the College. This includes, but is not limited to: marketing and branding, campus master planning, strategic planning, alumni engagement, resource development, and athletics. Kathryn received her B.A. from Stonehill College and will be serving a three-year term with the group.

Britt-Marie Cole-Johnson and Ed Heath Present on Internal Investigations During AICUM Spring Symposium

Labor and Employment Group lawyer Britt-Marie K. Cole-Johnson and Business Litigation Group lawyer Edward J. Heath presented a breakout session on "Conducting Internal Investigations: Getting the Witness Interview Right" during the Association of Independent Colleges & Universities in Massachusetts (AICUM) 2018 Spring Symposium on June 6, 2018 in Waltham, Massachusetts. AICUM is the leading voice on public policy issues affecting independent higher education in Massachusetts. The association is comprised of 60 degree-granting, accredited, independent (private) colleges and universities across the Commonwealth. During the program, Ms. Cole-Johnson and Mr. Heath covered the components of an internal investigation, measures to take immediately, identifying witnesses, planning interview logistics, determining interview questions, and concluding the interview.

Kathleen Porter and Kate Dion Address Student Speech and Social Media at AICUM Symposium

Business Transactions Group lawyer Kathleen M. Porter and Business Litigation Group lawyer Kathleen E. Dion presented on "Student Speech on Social Media: From Cyberbullying to Campus Protests" at the Association of Independent Colleges and Universities (AICUM) Fall Symposium 2017 on October 6 at the College of the Holy Cross in Worcester, Massachusetts. Ms. Porter and Ms. Dion discussed the use of policies by colleges and universities for controlling or blocking anonymous social media platforms, maintaining fair and risk-free discipline processes, and tailoring specific steps to investigate cyberbullying. They also presented on the challenges associated with each stage of inviting a controversial guest speaker to a college campus, including how to solicit and review invitations as well as how to maintain a spirited academic atmosphere while also protecting the students’ right to assemble. The session also included a discussion of investigating handbook policy violations in these areas fairly and independently. Andrew W. Monthey assisted with and attended the presentation. 

Robinson+Cole Lawyers Participate in 2017 Southern New England Energy Conference

Environmental, Energy + Telecommunications Group lawyer Brian C. Freeman and Labor and Employment Group lawyer Britt-Marie K. Cole-Johnson presented at the 2017 Southern New England Energy Conference in Newport, Rhode Island on September 18, 2017. Mr. Freeman spoke on "Buying or Selling an Oilheat Business: Through a Legal Lens." He discussed the importance of knowing the legal considerations in transactions, positioning a business for sale, minimizing risk exposure, and facilitating the deal. Ms. Cole-Johnson spoke on "Creating a Comprehensive Employee Handbook." Her presentation, based on work done by Robinson+Cole on behalf of the Massachusetts Energy Marketers Association, provided a comprehensive review of elements that should be included in any employee handbook. She emphasized how a well-drafted employee handbook can protect employers, reduce the risk of liability, and increase employee morale.

Robinson+Cole Lawyers Host Loomis Chaffee Students as Part of Alumni Shadow Day

Robinson+Cole lawyers Britt-Marie Cole-Johnson, Peter R. Knight, and Kathryn N. Mullin arranged to host two seniors from the Loomis Chaffee School, a co-ed independent boarding school in Windsor, CT, at the Hartford office on Thursday, May 18, 2017 as part of Alumni Shadow Day. All three lawyers are alumni of Loomis Chaffee and Ms. Cole-Johnson currently serves as a member of the school’s Head's Council. The students met with lawyers and staff representatives from the human resources, office administration, library, billing, accounting, information technology, and business development & marketing departments to get a better understanding of what it’s like to work at a law firm. In addition, the students were accompanied by Ms. Mullin on a visit to the chambers of Judge Alfred V. Covello, Senior U.S. District Judge for the District of Connecticut, and attend a sentencing hearing. Click here to view a photo.

Robinson+Cole Lawyers Present at World of Higher Education Conference

Construction Group lawyer Gregory R. Faulkner and Labor and Employment Group lawyer Britt-Marie K. Cole-Johnson were panelists at The World of Higher Education Conference, sponsored by the UK-based law firm Mills & Reeve, at the British Library in London on March 16, 2017. Offering views from a U.S. standpoint, Mr. Faulkner spoke about the funding and delivery of construction projects at higher education institutions in the U.S. in the session "International Perspectives on Real Estate," and Ms. Cole-Johnson spoke about strategic workforce planning for U.S. market entry initiatives for UK-based higher education institutions in the session "Perspectives from the U.S." Click here to view photos from the event.

Robinson+Cole Lawyers Present at AICUM Fall Symposium 2016

Labor and Employment Group lawyer Britt-Marie K. Cole-Johnson and Business Litigation Group lawyer Kathleen E. Dion presented at the Association of Independent Colleges and Universities in Massachusetts (AICUM) Fall Symposium on October 14, 2016, at the College of the Holy Cross in Worcester, Massachusetts. The session, "Scandal on Campus and the Modern Day Investigation: Harassment, Sexting, and Avoiding the 'Rabbit Hole,'" covered what today's workplace scandal looks like, the impact of technology on investigations, how to determine when an employer must investigate a complaint, and how to craft a witness interview strategy and investigation scope. Click here for the PowerPoint. AICUM provides a public voice on key policy matters that concern private independent colleges and universities in Massachusetts. 

Robinson+Cole Launches HigherEdWire – News for legal counsel

Robinson+Cole's Education Law Group has launched a LinkedIn Group as a forum for discussions on news and legal developments affecting institutions of higher education. The group, HigherEdWire – News for legal counsel, can be found at http://www.linkedin.com/groups/HigherEdWire-News-legal-counsel-7464519.

"Colleges and universities face legal issues in a variety of areas that continually change," said Megan R. Naughton, co-chair of the firm's Immigration Group. "Our education team monitors the pressing developments faced by educational institutions, and we wanted to create a source to share those updates on developing stories and trends that also encourages dialogue with those in the industry. LinkedIn provides that platform."

Hartford Lawyers Present Education Law Program to UHart Students

Hartford lawyers Gregory R. Faulkner, Edward J. Heath, Nicole H. Najam, and Kathleen E. Dion presented to a class of University of Hartford doctoral students on July 30, 2014. The students are candidates in the university's Doctorate in Education Leadership program. The session's purpose was to provide an overview of higher education law, including hot topics and possible pitfalls. The class, "Education Law: When to Call Outside Counsel," covered a variety of legal issues that the students may confront in administering at institutions of higher learning. Topics ranged from contract drafting and negotiating to investigations and employment. Please click here to view the session's outline.

Robinson+Cole Introduces HigherEdWire Group on LinkedIn

Robinson+Cole's Education Law Group has launched its HigherEdWire - News for Legal Counsel group on LinkedIn, serving as a platform and news aggregator for legal counsel at colleges and universities. Members of the group can view articles and exchange ideas on current news issues relevant to institutions of higher education. To join the group and discussion, click here.

The Education Law Group serves as outside counsel, providing advisory, transactional, and litigation services to meet the needs that are unique to educational institutions, from large universities and midsize colleges to independent schools. Members of the group provide legal services to educational institutions in a broad range of practice areas that shape the student, faculty, and employee experience.

Construction Attorneys Speak on Green Buildings and Sustainable Construction

Construction attorneys Gregory R. Faulkner and Martin A. Onorato delivered a presentation at the Higher Education Real Estate Lawyers (HEREL) eighth annual conference on October 12, 2010, in Princeton, New Jersey. Their session, “Managing Liability Issues in Green Buildings and Sustainable Construction,” concentrated on how to allocate risk and assess responsibility in the design and construction of green buildings. HEREL is an organization of lawyers committed to providing continuing legal education opportunities for attorneys who practice real estate and construction law at higher education institutions. Real estate attorney Garry C. Berman also attended.