WilmerHale recently held its inaugural Academic Year-End Review: Current Issues in Higher Education conference in Washington DC. The event, co-hosted with Berkeley Research Group, included two panel discussions on current issues facing college and university attorneys as the 2017–2018 academic year closes. Speakers included a university general counsel, a former Department of Education official, a former administrator of two for-profit higher education institutions, and a managing director of a global public relations and communications firm.

Below are key takeaways from each of the conference sessions.

Crisis Response in the Wake of the #MeToo and Time’s Up Movements

In the wake of the #MeToo and Time’s Up movements, it is critical for in-house counsel to anticipate issues before they arise—and have a plan for responding to crises promptly and effectively. In a lively discussion, panelists offered guidance regarding the proactive steps college and university attorneys can take to prepare for potential crises. Key insights included:

  • Use the #MeToo and Time's Up movements as motivation to proactively evaluate policies and practices and to address issues of pay equity, gender discrimination and sexual misconduct on campus.
  • Don’t wait for a crisis to hit—coordinate with your communications office, establish a crisis management team, and consider how your institution should respond to high-profile sexual misconduct issues.
  • Engage with your institution’s board, keeping board members informed of thorny issues or allegations to avoid surprise when a crisis emerges.

Regulatory, Enforcement and Litigation Issues on the Horizon

Given today’s ever-shifting landscape of regulation, state and federal enforcement and private litigation in higher education, panelists covered recent developments and trends relevant to both nonprofit and for-profit institutions. Noteworthy points included:

  • As we await new Department of Education rules (e.g., Borrower Defense and Gainful Employment), be mindful that state-level enforcement and private litigation may fill gaps in regulation.
  • Take a hard look at your institution's reporting to third parties and ensure—either through internal or outside auditing—that data is correct and complete.
  • Information sharing between institutions (e.g., about early decision applicants) has raised antitrust concerns; remember that the Sherman Act applies to nonprofit and public institutions.
  • In light of increased interest in foreign influence on political discourse, consider whether your institution is engaging in activities that implicate the Foreign Agent Registration Act.