Independent School Law (K-12)

The best way to limit liability is to prevent problems, starting with sound policies and safe, qualified hires. We prepare employee handbooks, employment agreements and leave policies, and we design hiring practices that protect students, including applications, interviews, reference checks, background and medical screening, I-9 compliance and orientation.

We advise on the full range of faculty and staff issues, including performance evaluations, discipline and termination, discrimination claims, FMLA and other leave laws, disability and accommodations, whistleblower complaints, social media and off-campus conduct, drug-free workplace and driver policies, personnel records, and workers’ compensation.

Drawing on our extensive experience with wage and hour issues, we help schools classify employees as exempt or non-exempt, calculate overtime, track hours and keep payroll compliant. We also help shape their workforces through reductions in force, severance agreements and early retirement programs.

Our risk-management audits review human resources policies, wage and hour and payment practices, background check practices, mandated reporting policies, hiring practices, appropriate boundaries with students, and broader legal exposure. Each audit concludes with a written report identifying concerns, recommending corrective measures and setting out a prioritized action plan.

Avoiding litigation is always the goal and our attorneys work with clients through pre-litigation negotiations, mediations, and arbitrations. When court is the best or only way to protect a school, our litigators defend schools vigorously and pursue resolution when it serves the client. When insurance applies, we can often represent schools through their carriers, significantly reducing costs. We handle:

• Defense against wrongful discharge and wage and hour claims
• Challenges to student discipline
• Enrollment contract disputes
• Personal injury defense
• Construction, property and neighbor disputes
• Board-related litigation
• Actions to enforce insurance coverage

Our attorneys have broad experience with student matters from admission to graduation, including admissions procedures, enrollment documents, student handbooks, honor codes, conduct policies and fair disciplinary procedures that hold up when challenged. We also counsel schools on their most sensitive situations, including:

• Mandatory reporting of child abuse or neglect
• Counselor and teacher confidentiality
• The school’s role in custody and domestic disputes
• Difficult parent relationships
• College reporting and transcript release
• Gender identity policies
• Transgender sports and activities policies

Allegations of sexual abuse by current students or alumni require a careful, strategic response. We help schools prepare for and respond to such allegations, including through:

• Boundary and conduct policies
• Procedures for internal investigations
• Crisis management plans
• Managing reputational risk
• Appropriate outreach to the school community
• Training for faculty, staff and students

We also prepare harassment prevention policies, reporting procedures and training, and we investigate complaints with attention to confidentiality and privacy. We work thoughtfully with schools on matters involving transgender students and adults, developing policies that create safe spaces consistent with each school’s culture and mission.

Disability law applies to students, employees and others in school programs. We guide schools through ADA issues such as admitting students with learning disabilities, reasonable accommodations, undue burden analyses, facility and program access, and modifications for allergies and other health conditions, vaccination exemption requests, and training of administrators on these requirements.

Off-campus programs and visiting participants require clear documentation. We prepare travel protocols, permission and medical forms, payment documents and third-party provider agreements for field trips and study-abroad programs. For international students, we draft enrollment agreements addressing international payments, prepare homestay agreements and payment terms, and establish procedures for vetting host families.

Independent schools increasingly affiliate with domestic and international institutions or open campuses overseas. We advise on structuring and financing these ventures, international tax and trade compliance, employment and compensation for staff abroad, student and faculty safety, and protection of curricula and shared branding.

For summer camps, after-school offerings and other auxiliary programs, we prepare enrollment and permission documents, employment documents for minors and seasonal staff, screening procedures for non-faculty personnel, and guidance on state and local camp rules.

Compensation laws carry real consequences for school leaders, including intermediate sanctions and other penalties for noncompliant arrangements. We draft head of school contracts that reward performance and are tax-efficient for both the head and the school, and we advise on:

• Comparable compensation assessments and rebuttable presumption compliance
• Deferred compensation, housing and loan programs, and tuition remission
• Executive severance
• Head of school searches, transitions and succession planning

Our employee benefits attorneys understand the specialized rules governing independent school retirement plans, including Section 403(b), 457(b) and 457(f) arrangements and supplemental programs that help schools recruit and retain key personnel. We also review health, life, disability, cafeteria and education assistance plans, split-dollar life insurance and evolving healthcare reform obligations.

For schools with unionized employees, we negotiate and implement collective bargaining agreements, develop strategies that preserve flexibility, and defend against unfair labor practice charges.

We counsel trustees and administrators on all aspects of governance, including:

• Fiduciary duties of care, loyalty and obedience
• Bylaws, charters and articles of incorporation
• Board procedures, minutes and committee structure
• Audit committee design and auditor selection
• Conflict of interest, whistleblower, ethics and document retention policies
• Private inurement and private benefit, and intermediate sanctions compliance
• Sarbanes-Oxley best practices
• Board training

We also help schools prepare for accreditation reviews, including materials on governance, legal compliance and industry best practices for accreditation committee visits.

We advise on the tax and finance issues that affect independent schools, including:

• Nonprofit tax status and church status evaluations
• Unrelated business income tax planning
• Form 990 compliance
• Sales and use tax exemptions
• Defense in IRS and state tax audits

We also support advancement work, including planned giving and bequests, donor obligations, and charitable solicitation, substantiation and registration requirements, and advise on investment compliance, endowment management, banking and lending relationships, tuition collection, red flag rules and Truth in Lending Act compliance.

Schools sign many contracts each year, often without legal review, and short agreements can quietly waive rights the school would otherwise keep. We draft, review and negotiate vendor, food service, cleaning, technology, facility use and subcontracting agreements, and help resolve contract disputes.

Our real estate attorneys help schools buy and sell property, select sites, obtain zoning, special exception, conditional use and environmental approvals, and manage neighbor relations. On construction projects, we negotiate architect and general contractor agreements, resolve defect claims and mechanic’s liens, and advise on OSHA, asbestos and green building requirements.

Technology and social media create legal exposure when their implications go unconsidered. We help schools adopt acceptable use policies for students and employees, meet privacy obligations, ensure online enrollment agreements are enforceable, structure e-commerce and online fundraising to comply with state solicitation laws, and use social media responsibly for marketing and development.

We protect a school’s name, logo, brand, curricula and other creative work through trademark, copyright and licensing strategies. When faculty or students create apps, curricula or other revenue-generating innovations, we prepare intellectual property policies and royalty agreements that settle ownership questions in advance.

We review property and casualty, directors and officers, liability and benefits coverage, advocate for clients on claims, and assess risks tied to campus safety, transportation, travel, athletics and on-site medical care.

Although independent, schools must still meet certain state and local requirements. We help them stay compliant on licensing, vouchers, and state and federal financial assistance, and we support legislative and government advocacy. Our antitrust attorneys counsel schools on investigations, litigation, compliance audits, and mergers and acquisitions.