Higher Ed Program Changes in a Time of Crisis: Questions and Answers
Host: Hello, and welcome to today’s webinar — Higher Ed Program Changes in a Time of Crisis: Questions and Answers. Note that all attendees are in listen-only mode. Today’s program is completely question-and-answer format, so there is no prepared content. It will be approximately 60 to 90 minutes long, depending on the questions received. You can submit your written questions at any time during the webinar. Simply enter your question in the question box on the bottom of your screen and click submit. Your submitted questions will be visible only to the moderator. Webinar resources are available in the resources list to the right of the presentation. Please note that today’s program is being recorded. And now here’s today’s moderator, Hillary Pettegrew.
Pettegrew: Thank you, and welcome to our program everyone. I’m Hillary Pettegrew, senior risk management counsel at UE. This webinar is a bit different from most that UE holds because it’s strictly Q&A format —audience questions to our three speakers will create the content. As a rule of thumb, the more concise you can make your questions the better. While normally our webinars are open only to UE member institutions, because of the importance of this topic we decided to make it, and the resources, available to all higher education institutions.
And now I’d like to introduce the speakers, who are all partners with the law firm Husch Blackwell. You’ll find links to their full bios on the right of your screen. First, we have Ellen Babbitt, who has spent most of her legal career counseling and representing higher education clients, with a particular emphasis on tenure and other faculty issues. She also has significant experience advising institutions that are going through some type of program change, including institutional closures. Ellen, welcome, and thanks very much for sharing your expertise today.
Babbitt: Well, thank you for the opportunity to participate, Hillary.
Pettegrew: We’re also fortunate to be joined by Lisa Parker, who has extensive experience with higher education. She advises institutions on a host of accreditation and regulatory compliance issues, including guiding clients through the complex higher education regulatory process for a change of control stemming from the acquisition of an institution or as two institutions merging or consolidating. Welcome, Lisa.
Parker: Thank you, Hillary. I’m glad to be here.
Pettegrew: And finally, I am pleased to introduce Kate Leveque, whose practice focuses on labor and employment law, including federal laws that are almost always relevant whenever institutions contemplate an academic program change. Those include Title VII, the Age Discrimination and Employment Act (or ADEA), and the Americans with Disabilities Act, often known as the ADA. She also regularly advises clients concerning reductions in force. Thanks for joining us, Kate.
Leveque: Thank you so much for having me. I’m happy to be here.
Pettegrew: Ellen, Lisa, and Kate are three of the authors of today’s webinar resources, which are a series of publications that UE recently released addressing how institutions should plan for and implement all types of academic program changes stemming from financial pressures. These changes can range from reducing or eliminating a single major up to closing an entire institution.
This slide lists the publications, which include an overview guide to managing risks associated with the primary types of academic program changes and four detailed checklists, each of which focuses on a particular aspect of those changes. All five publications are included in the resources. Please note that if your institution is not a member of UE, you’ll want to download the PDFs from the webinar portal today. Those who are with UE members can access the publications at any time on our risk management website, www.edurisksolutions.org, at the link shown here.
In addition, while the coronavirus (COVID-19) crisis has very likely accelerated consideration of program changes for many institutions, the speakers and I need to clarify that the publications do not address, and this webinar was not intended to cover, issues highly specific to the pandemic, such as recommended practices for reopening campuses. We received several questions in advance about that type of issue but, unfortunately, we’re not able to address those, or similar questions, today. However, I’ll note that on April 9, my colleague, Melanie Bennett, moderated a webinar titled Coronavirus: Answering Your Questions. And you may want to just check the EduRisk Solutions site for information about that program.
As noted, today’s webinar is being recorded and the recording should be available on EduRisk Solutions within the next week to 10 days. In addition, like all UE webinars, the program is designed to provide risk management guidance and not legal advice.
And before we get to your questions, since not everyone participating has been able to review the resources yet, we thought it would be helpful for the speakers to give a preview of their content. Ellen, could you start by overviewing the guide?
Babbitt: Yes, when I take myself off of mute. Apologies for that little delay there. Yes, the guide was intended both to give a kind of a high-level view of how to begin one of these consideration processes of program reduction, any kind of program change, financial exigency findings, which may involve termination of faculty. And moving to even more kind of extreme, although often necessary moments of changes of control, and even in the worst-case scenario, institutional closure. And the idea is to give a high-level view of the planning, and education, and governance considerations and then move to some practical advice regarding each of these kinds of decisions and steps. And we emphasize the need to plan and educate beforehand, but also we offer checklists, which I think is very useful and they kind of bring together our experience as counsel and the experience of any counsel within higher education. So, that is the purpose of the guide — moving from the high level to the practical and the checklists.
Pettegrew: OK. And Lisa, could you summarize how the publications can help institutions address the accreditation and regulatory compliance issues that are involved in a program or institutional change?
Parker: Sure. So, let’s take an institutional change, for example, that results in a change of who controls or owns an institution. And so, this could take a variety of forms, including an asset transfer, a formal merger or consolidation, or a change in structure. You know, sometimes those changes may look like a consortium agreement with other institutions that are nearby, but sometimes could include some level of shared governance. But whatever sort of the situation is, if it constitutes a change of control, it’s likely to require multiple approvals from regulatory bodies, such as an institution’s accrediting agency, or the higher education regulatory authority for the applicable state. And if an institution has specialized programmatic accreditors, such as for nursing programs, those approvals may also be required. And each of these agencies has really different timetables. And so, it’s critical that an institution prepares a detailed plan that describes them all.
Also, another concern that we talk about in the publication is making sure that if you have one of these really big changes that impact an entire institution, that you’re able to make sure that there’s a continuation of federal student aid. And so, the U.S. Department of Education will need to approve an institution’s continued participation in federal student aid programs after any sort of change in control. And so, this is an area where really an institution cannot afford to have a mistake happen, and have their financial aid disrupted. So, there really is a lot to consider here in order to make sure that the transition goes smoothly. So, in both the guide at pages eight through 10, and especially the third checklist in the publication, which deals with changes of institutional control, really goes into significant detail about meeting these types of requirements.
Pettegrew: Thanks. Kate, as the employment specialist, could you discuss the type of guidance the publications provide in that area?
Leveque: Sure. And faculty and staff considerations are almost always relevant in any kind of program change that an institution is going through. And so, there’s significant influence on those in the publications. For example, on pages six and seven of the guide, we discuss issues such as the potential application of shared governance requirements that faculty have a right to some sort of involvement in a program change and AAUP guidelines on transfer, or preferential treatment for displaced faculty. Those requirements would, obviously, depend on the policies and procedures of each institution, which we obviously recommend be reviewed during the planning process.
And while non-faculty employees usually don’t have the same procedural protections as faculty, some do have contracts, and others might have rights under a collective bargaining agreement, or other applicable laws that an institution needs to take into an account. So, the general planning checklist that we have note these, as well as the federal and state employment laws that might apply.
Pettegrew: OK, thank you. And with that, let’s turn to audience questions. The first one goes to Ellen, and I think it’s a good one to get us started: “How can we prepare our board and leadership to make these difficult decisions?”
Babbitt: Well, thank you. That is a very good question, and it can kind of signal the difference between a very, very difficult process, and one that, while it’s always painful and difficult to make these decisions, can work and can place your institution on a better path. So, I would say that the important thing in preparing the board and leadership is to take the time to plan, and to educate. Planning means together the documents, the policies and procedures that are going to govern what you can and can’t do, what you want to do and don’t want to do. Assemble your appropriate resources. This may be counsel, it usually will be counsel because, as you listen to Lisa, you see that there’s a lot of very specialized consideration here, and you want counsel who’s actually worked within the field of higher ed, and in these kinds of situations. Counsel, but also maybe educational consultants, depending upon the nature of the decision that you think you’re going to be making.
Also, incredibly important to apprise the board of the legal and accreditation requirements. We are a regulated industry, and we access financial aid and federal funding we need to comply with legal and accreditation requirements. It’s also very important to calibrate, for the board and leadership, that we should be focusing upon protecting the interests of students. I would say this is the primary risk management, but also mission imperative, as you’re planning and educating yourself about these processes. Often, we focus a lot on faculty but, honestly, it’s student interests that we need to calibrate ourselves to focus upon.
And I also think it’s important, as part of the planning and educating process, for the board to talk with them about how these things work. Discuss confidentiality, also discuss the importance of transparency and effective communication. And also educate them about the unique aspects of shared governance to academic decision-making. This isn’t like making these decisions in the corporate world. It’s different and it’s framed by shared governance considerations. So, I’d say that planning and educating the board and the leadership pays huge dividends and also helps us focus upon our mission, which is centrally focused upon the interests of students and protecting students in these processes.
Pettegrew: OK. Thank you. That’s a very good overview, I think. Lisa, our second question is for you. The participant asks, “If our institution has major financial challenges, will we still be able to receive regulatory approval to merge or consolidate with another school?”
Parker: Well, that is a very good question. And it’s a very timely question, especially as so many institutions, right now, are really struggling financially as a result of COVID-19. So if your institution currently is having financial challenges, yes, making sort of a big change could be more challenging. Regulatory agencies always assess an institution’s finances as part of deciding whether they can make a big change, such as a change of control. So it’s really important to show that there’s some level of financial stability.
So, for instance, if one institution has very weak finances, it will be really important for the other institution to show financial stability. So, in particular, agencies tend to look at whether institutions will have sufficient stability to complete the transaction and to move forward after the transaction closes. So, in other words, following the transaction, will institutions be able to meet whatever their financial obligations are going forward? Also, if it’s the type of transaction for which the U.S. Department of Education’s approval is required, then the department runs a variety of financial paths, including wanting its financial responsibility composite score test based on the institution’s audited financial statements ─ as well as, putting together, or looking at, other financial paths to evaluate if an institution’s assets, for example, exceed their liabilities after a transaction closes. And if, for some reason, an institution’s not able to meet these tests, generally speaking, the department requires a letter of credit be required in order for the continued participation in financial aid after the transaction closes.
So, all of that means that if there are financial challenges, it doesn’t mean that a transaction or a big change, in terms of maybe merging with an institution, it doesn’t stop it necessarily from going forward. But it is something that you really need to carefully consider as you’re going through the process to make sure you’re able to get the approvals you need to go forward.
Pettegrew: OK, thank you. Kate, here’s a question for you: “Are faculty members subject to an across-the-board salary reduction, and what are the risks that we should consider in analyzing that question?”
Leveque: So this is a great question. And it’s one that we’ve actually gotten frequently lately. So, it might be possible to lower the pay of faculty members, but there’s a lot that goes into that decision. You’re going to need to take a close look at your appointment letters or other applicable contracts that you have with your faculty members. If the contract sets out a set salary that will be paid for the term of the appointment, but it’s silent as to the ability of the institution to unilaterally change the pay, there could be a claim for breach of that contract, if the faculty member does not agree to or volunteer for the pay cut. So, depending on the type of the institution, and the provisions in the handbook, there could also be due process requirements allowing faculty members the opportunity to be heard on the issue. So ultimately, you really need to take a look at the documents that govern your faculty members and your university. Look and see whether this issue has ever been contemplated before. And follow any of the requirements that are laid out.
The other thing that I should mention is that even if pay cuts are not prohibited, and they are allowed, some state and local laws have notice requirements that must be complied with before changing any employee’s salary. So, for example, I am in St. Louis, Missouri, right now, and Missouri has a 30-day notice provision. So, you would need to comply with any of those sorts of requirements. If salary cuts are being considered, you would review all of the applicable documents and the relevant laws. And we always recommend that you have those reviewed with your favorite employment counsel.
Pettegrew: OK, thanks, Kate. Ellen, here’s another question for you. The person wants to know: “When should we start communicating with campus constituents that we’re contemplating a change to a particular academic program? Is it best to wait until they’ve made a decision and finished the planning?”
Babbitt: Well, by the way, I think we can just assume that all of the questions being asked today are good. And they’re also not going to admit the easy answer. So, I’m just going to preface this by saying that all of these questions are good and all of them are difficult.
Here’s a lawyer answer, but it depends. It depends upon what you’re doing, but it also may depend upon whether this is the kind of decision on which faculty input is useful or required by the terms of your handbooks, your bylaws, your faculty statutes. I would generally err on the side of including some faculty structured body in considering a program change, a program elimination. And many handbooks or statutes require this, so you’re going to need to do it anyway, you might as well do it effectively. And if you’re communicating with the faculty committee, you probably want to be more rather than less transparent.
We used to try to keep everything confidential forever until a decision had been announced and then announce it. But particularly for program changes that do not involve something very structural, like a change of control, it often makes more sense to bring people in earlier rather than later. It’s more consistent with shared governance, and it builds trust. One thing we always want to remember is when we’re talking about a program reduction or change, there may be people who have to leave as a result of that. But more people are going to be staying than leaving. And we want to build as much trust, and as much consensus and constructive engagement as possible. So I would say I would start communicating as soon as possible if you have any kind of shared governance nexus to this particular decision.
Pettegrew: OK, thanks. Lisa, here’s another one for you: “We operate a graduate program in which many students take one three-hour course per semester. We announced that this program would be closing in May 2021. How long do our teach-out responsibilities continue for students who take such a small course load overall that a long-term teachout is just not economically feasible, which is frankly why we closed the program in the first place?”
Parker: So, that question is, obviously, very specific to that program. So, there’s some sort of general thoughts to link to that. So, in closing a program it’s really important to set forward from the beginning, what an institution will or will not provide for students. So, here, it sounds like the institution stated that as of May 1, 2021, so a year from now, that it will no longer offer that particular program. And so, when making such an announcement, it’s really important to make clear to students that as of this particular date, your institution will no longer be teaching that particular program.
And if you set out sort of the clear parameters of that, you are setting out what your obligations are to students. So you don’t necessarily have to teach longer than the date by which you tell students you’re going to stop teaching. So if you’re going to say in a year from now, we’re going to stop teaching, there’s no necessary obligation for you to teach longer than that. But what most of your regulatory authorities require is that you have really clear communication with students about their programs being discontinued. Letting them know from this point on, we won’t be able to offer this any more, but then also providing them with options. Telling them, “But you can go to these other schools. We have articulation agreements with those schools, they offer similar programs. Your credit will transfer.” So, it’s really about developing that full, comprehensive communication with the students and letting them know, sort of, when your obligations will end.
This question also reminds me that there are new federal regulations that are going to be effective July 1, that are specific to teach-out plans and teach-out communication. And one of those will require that if, for example, your accrediting agency requires you to put together a teach-out plan, your accrediting agency will also have to review all of your notifications to students about their teach-out options, and so that’s just something to think about. There is an extreme focus right now on making sure that students fully understand what’s going to happen during a teach-out, and so that’s something to really keep in mind when you’re planning for such a thing.
Pettegrew: OK. Thank you. Kate, here’s another one for you: “Should we revise our faculty handbook, bylaws or appointment letters now so that we can get ready for any actions we may need to take?”
Leveque: We always recommend periodically reviewing those documents, and by periodically I don’t mean every 10 to 15 years, but you know, every three years or so. If you need to make changes now, you could do that if you don’t think that you’re going to take action until next year. Now that will, in this economy, raise eyebrows and questions, and so you want to make sure that you follow your procedures set forth in your handbook and any other policies for making those changes. I also recommend, even if it’s not laid out in a policy, that you look back at what you’ve done in the past and consider your past practices for making changes and revising your handbooks. You might consider adding some sort of a furlough process in the faculty handbook and explaining how that would apply to faculty members if it’s not there already. In your appointment letters, you might consider adding something in there saying that the salary specified is subject to modification by the institution, considering the university’s financial health during the budgeting process and then indicating that the university will act in good faith and won’t arbitrarily reduce anyone’s salary.
Those are some options that you might want to consider if you’re thinking that you might on the horizon need to take some actions, but we always recommend that changes be done prospectively. It’s always easier to change them before you’re considering taking action than changing policies and procedures in the middle of taking action.
Pettegrew: OK. Thanks. Ellen, here’s another one for you: “Could you list some of the policies related to a program change that are most often overlooked? We are in the process of trying to identify all applicable policies for an anticipated change, and we want to make sure we don’t miss anything.”
Babbitt: Absolutely. That’s a question that I am happy to answer because we do have problems within higher ed of not being able to locate and kind of assemble the policies before we start trying to make these changes. When we’re talking about a program, I think we need to look at the full continuum of relevant university college communications about that program. That means marketing materials, admissions materials, student course catalogs, also information in faculty handbooks, statutes, constitutions, and board bylaws about how programs should be changed. But the policies that do seem to be overlooked when we’re talking about program change would be program-specific policies. We have found, because we operate in a somewhat decentralized fashion at least at larger institutions, we will often have information in student course catalogs and faculty handbooks about programs and then we have separate descriptions of programs, descriptions of program procedures, that are generated and used within the specific program.
It’s extremely important that we identify those program-specific descriptions as well, because unfortunately, we have situations sometimes in which programs have adopted procedures or descriptions that are different from what is found in a university-wide student course catalog, student disciplinary process, faculty university-wide program. So I would say program-specific information is often overlooked but critically important to identify and then follow if you can.
Pettegrew: OK. Lisa, here’s another one for you: “From a higher education regulatory perspective, what constitutes an institutional change of control?”
Parker: That’s a really good question, and it’s one we actually get a lot because it’s something you need to understand if you are having a change of control as that is what triggers a lot of regulatory reviews. So generally speaking, a change of control is any time you have a change in terms of who controls an institution. By that I mean, who has level of controlling authority as to the institution or who has some ownership interest in an institution. This could take a variety of forms such as a merger ─ two institutions decide to come together. It can be an asset transfer, that type of situation, it could be where one institution acquires another institution. So it really can come in a variety of different formats. One of the things that we’re also starting to see are situations where two institutions are deciding to share administrative services, for example, and maybe have one common president or one governing board or unique public-private partnership.
And so when those types of things occur, it’s important to do an evaluation of whether those changes will change who actually has the governing authority for the institution, because that’s what triggered the change of control.
Pettegrew: OK. Thanks. Kate, here’s one for you. The person asks: “As a follow-up to reducing the pay of a faculty member, are there applicable SLSA or WARN Act requirements of which our institution should be aware?”
Leveque: So related to reducing the pay of a faculty member, there wouldn’t be WARN Act requirements because generally WARN would only apply if you are laying off someone or if you’re terminating their employment. So I don’t think that WARN would apply. Now in terms of reducing the pay of faculty members, generally those faculty members are going to be under the teaching exemption, to be exempt under the Fair Labor Standards Act, and so in general their salary is different than our staff members who are under the administrative or executive exemptions, and so there aren’t as many requirements in terms of reducing pay. Now WARN will kick in or could kick in, as will Fair Labor Standards Act and other state and federal wage and hour laws, if we’re talking about furloughing rather than salary cuts. Furloughs can be pretty complicated for faculty members and staff, and so I can talk through those issues if we think that it might be helpful. Hillary?
Pettegrew: I think if you can summarize them quickly, that might be a good idea.
Leveque: Sure. That sounds good. I just know that it wasn’t quite in line with the question, but I can definitely do that. So the issue with faculty members and furloughs is complex, but to summarize it quickly, you need to look at your institutional policies, the terms of appointment letters and contracts and state laws, all of that can go into play. In terms of WARN specifically, under the federal WARN laws and most state, what I’ll call mini-WARN laws, a furlough that does not last more than six months is not going to trigger WARN. A furlough of more than six months could trigger WARN if it meets the threshold requirements, meaning the number of employees impacted is high enough to trigger either your state or your federal WARN law. Those might come into play.
Also for staff members and furloughs, you need to make sure that for any exempt employees and faculty members too, I guess, because they’re classified as exempt, generally what goes along with being exempt is that you receive a set amount of salary for the week in which you work and that salary is paid regardless of the amount, the quality or the quantity of the work that you perform. And so if you were furloughing exempt employees for less than one full week, there could be some issues. And depending on your institution and your specific facts, you would want to have those reviewed to make sure that you’re in full compliance before you implement the furlough.
Pettegrew: OK, thanks. I think that’s helpful. Ellen, this may be a good one for you, although other speakers may have something to add as well: “What considerations should be taken into account with sacred cows on campus? How can a risk manager encourage academic leaders to review particular programs that may need to be changed or eliminated?”
Babbitt: Is the question how a risk manager can encourage academic leaders?
Pettegrew: Yes, that’s the question.
Babbitt: OK. I guess I would start by saying that it depends on who the risk manager is. My inclination would be to say that, yes, it’s important to bring academic leaders into these processes when you need to be and one of the effective processes I’ve seen recently involved the president reaching out and creating a blue ribbon task force made up of academic leaders to go through programs and rank them through enrollment information and long-term trends. But I would say that I think that bringing together faculty leadership to talk about these big issues is a presidential or VPAA function. It’s a leadership moment, and I think that it requires a level of communication and dialogue, ongoing discussion with faculty leadership on how to do this. There’s really no substitute for leadership at that moment. So the risk manager, it needs to also be the leader, I think, to do this effectively.
I also think you can’t expect this to just happen overnight. You bring ... it depends upon the relationship between leadership and faculty on that particular campus, but there may be a level of mistrust or concern, particularly in this climate, and it’s going to be an ongoing dialogue about how to do this, and it’s going to take some time. I’d say, it needs to come from the president or the VPAA or both.
Pettegrew: OK, thank you. Lisa, another one for you: “We operate multiple campus locations and offer some programs at two or more of them. If we decide to offer the program at only one location going forward, would that be considered a program closure at the other campuses?”
Parker: So in this instance, it’s really important to look at what’s required for your particular institution. What this institution would want to do is look and see how its regulators, its accrediting agency or agencies, or its state higher education authority, what they say with respect to what they consider a program closure. But generally speaking, it likely depends on how your program itself is structured. So after you look at what may be required from your regulatory authorities, some more common sense things also come into play. I would say that if you don’t find a clear answer from looking at just policies and standards of your regulatory authority, this is the kind of situation where you want to pick up the phone and call them and say, “Here’s what’s going on.”
For example, if this particular institution, let’s say they have three locations that are within 30 minutes of each other and they all offer the same program. Well, discontinuing that program at two locations probably isn’t likely to be considered a program closure, because it’s the kind of situation where you could say to your students, “We’re no longer going to be offering it at these locations, but it’s still offered at this location,” and students would be able to easily get to the other location. Now that would be a different situation, though, if, for example, when you say have two different locations, you’re in different states. So you have one location, one campus in California and another in Arizona, and the student can’t simply drive back and forth, well, then that’s the kind of situation where you have a standalone program and you’re closing that.
It’s a situation where you’re really going to want to lay out clearly for the student, “Here’s what’s going to happen. We’re going to no longer be offering it as of this day. Here are other options in, let’s say Arizona, where you can go and complete your program.” So it’s a case-by-case basis but you want to check in with your regulators and get their guidance as well. Hillary?
Babbitt: Hillary, are you still on?
Pettegrew: I’m sorry. I think I accidentally muted myself. OK. Kate, this next question is for you. It’s a follow-up on the WARN Act question from a few minutes ago, and the person would like to know whether the WARN Act applies to public universities.
Leveque: This is a complicated question. In general, universities are covered by the WARN Act. Now there could be some exceptions to that for quasi-governmental agencies under certain state laws, and I would really want to look into this more and get a more thorough answer for you on that.
Pettegrew: OK, that’s fine. And then Ellen, I think you can take this one. The person would just like to know: “What is a teach-out?”
Babbitt: Oh, that’s a good question. We assume that everyone understands what’s to us is the common parlance, but hopefully you haven’t had to deal with this. A teach-out is a process of making sure that the students have a reasonable period of time to complete their programs. The various regional accreditors have policies regarding what they consider to be reasonable teach-outs and in some cases we have to submit plans for this. But basically when we’re talking about teach-out, we’re talking about not just cutting off students immediately and saying, “OK, we can’t do this anymore so our program is closed, effective now.” Sometimes we have to do that. For instance, if we don’t have accreditation, we can’t continue the program if you don’t have accreditation or you lose it. But in those situations, we have to try to make alternative arrangements for students as Lisa noted when she was talking about the parameters of a teach-out. But that’s what it is. It’s really a commitment to reasonably attempting to help students finish up their programs.
Pettegrew: Thanks. I think that’s a good explanation for those who might have been uninitiated in some of the terms here. Lisa, another one for you: “A few institutions have closed and then reopened in response to litigation or public backlash. Is this ever a good approach? Are there additional considerations when reopening a formerly closed institution?”
Parker: Wow, that’s interesting. It’s always interesting when we see that happen, and usually those stories end up in the press. I think it’s interesting. I think there’s something to be distinguished here between when an institution actually completely closes and when it’s been publicly announced that it’s going to be closed. There have definitely been instances recently where it’s been announced that a school is going to be closed and, for example, alums or the faculty or whomever come together and rally and are able to keep the institution going.
It’s always a heartbreak to see an institution close, but in that instance, it’s important if the institution is going to survive for those that are rallying to bring it together, it’s important for them to understand, what were the reasons that actually caused it to potentially close? Can that work? It can work, but I think it’s important for everyone to understand, what were those triggers that caused it to end up in that situation in the beginning? Was it just a financial issue? Was it a student enrollment issue? Really to identify what caused that. And then if an institution actually does ultimately close, one of the key things to remember is that ─ higher education institutions, it’s not like a light switch that you can just flip it back on.
There are a ton of regulatory approvals that are required to operate these institutions. If an institution completely closed, and let’s say some folks want to make sure that they’re able to start it again or to start it anew, it’s really critical to think about what the timelines look [like] around that. You’re going to need state authorization from your state. That’s an entire regulatory process. You’re going to have to obtain accreditation again, and then that’s a process. And then once you are in the candidacy period of that accreditation, if you’re a nonprofit or a public institution, then at that point, you’re able to get financial aid, but financial aid is not immediate. So if an institution completely closes, the biggest consideration to keep in mind are all the things that are required just from a regulatory standpoint to operate again, not even thinking of the cultural and other issues that should be considered.
Pettegrew: OK. Thanks. Kate, here’s an interesting one that I think should be in your wheelhouse. The person asks: “If offer letters to incoming PhD graduate students that include an annual stipend,” and I assume that would be for teaching assistant responsibilities, something of that nature, “are those subject to change of the stipend amount in the future,” — I’m again assuming that would be in response to economic pressures — “or is the offer letter a commitment to pay that stipend amount for the length of the student’s enrollment?”
Leveque: This really depends on the term of the offer letter. If it says you will receive this offer for the next academic year, it could be interpreted as a contract. If it just says this will be what you’re getting and hopefully, maybe, there’s some language in there about it being subject to change, that would be the most ideal situation, if there is something in there saying we reserve the right to review and change this. From the employment perspective, it’s really going to depend on what the terms of the actual offer letter are. Sometimes offer letters say this should not be considered a guarantee. Something akin to at will, as you would think of for your normal staff members. So you’d really want to take a look. If the language is silent, there could be a little wiggle room to say, “Well, that was just the starting pay, and it was subject to being cut or changed.”
Pettegrew: OK. Next question is for Ellen. The person says they understand your point about the importance of planning, but they’re trying to act fast, and do you have any tips for how to expedite planning and not let the perfect become the enemy of the good?
Babbitt: Well, I know I said I wasn’t going to keep saying questions were really good, but that is really good because that’s where we all are right now. First of all, I think there are some things we can do, which is the perfect cannot become the enemy of the good in this situation. On the other hand, there are some kinds of risks and some kinds of challenges that we have to respect and honor here, and one of them is that we do have to figure out what policies and procedures, legal constraints and accreditation requirements are going to frame what we do. That’s something that I think we have to do.
I also think that we need to educate our boards and our leadership before we do anything, if we can possibly do that, and while we’re doing something if it’s really that much of an emergency situation. Another thing we need to appreciate is that we often look at things as emergency situations on campus when we could probably step back a little bit and consider things a little more, not just passionately, but in a little more considered fashion. And in this particular situation where we’re getting so many changes of law, so many regulatory guidances, we’re going to be changing what we do anyway. So, but one thing I have found to be in a very effective strategy is to identify within the leadership someone who can be a point person for gathering information, assembling resources, and taking a leadership role in moving things forward. And that usually isn’t going to be the vice president for academic affairs, who already has so much work to do, but someone who can be a point person, and this may include, for communication purposes, it needs to be somebody’s job to assemble all of this information, bring together the constituencies and move this forward.
Otherwise, the problem of having to deal with different constituencies is going to make things just take too long. And that’s a very good expediting strategy. Otherwise, I’d say we just need to do these things as quickly as possible, but the problem is we have board members who have other jobs and everybody’s under strain. We have leadership that has other jobs, including putting all of their programs onto remote platforms. So I’d say finding someone who can be your point person within the administration is the single most valuable strategy I’ve seen to being able to move things forward quickly. Ignoring policies and procedures, ignoring laws, is usually not a good strategy unless you decide deliberately that you absolutely have to do that, but ignoring them because you haven’t taken the time to assemble all the information is not a useful strategy. Get somebody and make it their job to assemble all of this material and bring it to the decision makers. That’s my advice.
Pettegrew: And very sound advice, I think. Lisa, here’s one for you: “When discontinuing a degree program, absent accreditor guidance, must you keep the program open for the maximum time the last student who entered the program could take to complete a degree? That might be five years, for example, or can you select a shorter, reasonable period with guidance about how a student could complete their degree? Alternatively, could you allow students who need more time to transfer in credits from a similar program within that maximum time to complete the degree?”
Parker: So that question is a great question. And it’s one where all of the options that the person who leads the question presented, all of those options can be solutions. So for instance, if you are discontinuing a program, you do not necessarily have to continue to teach the program until every single one of your students who’s in that program has completed. You are not required to do that. What you are required to do is to really take the time to have a careful plan around this and to make that plan clear to the students. So you could say something such as we’re going to continue to teach this program for another year, another two years, but then you could also enter into what’s called a teach-out agreement with another school to complete the education for students who have not yet completed that program.
And you can also take the time to meet with individual students, see where they are in their program, and also advise them and say, “Here’s where you are. We are only teaching it for this much longer. We have articulation agreements with the various other schools that are willing to help you complete the program,” and just help them as part of the academic advising lay out that strategy. But you are not required to teach every single student through the very end of their degree.
Pettegrew: OK, Kate, another one for you: “What should we do about adversarial faculty members who want the administration to take a different path than it has planned?”
Leveque: Another great question, as they all are. I think that the key to this is getting the buy-in early, communicating early, and having some transparency to the extent possible. Just as Ellen said, I think the old way of doing things was to keep everything confidential until decisions were made and then rolling out that decision. But one way to do it is to have a little bit more communication and transparency.
Also to the extent that you have shared governance policies or other practices or policies that provide for faculty participation in the process of making these program change decisions, that’s also going to be really helpful. Sometimes, in our experience, it helps faculty members to know that their voices were heard through their peers. And rather than feeling like all of the decisions are being made without faculty involvement by the president’s suite. Ultimately there’s no way to avoid someone who is going to be adversarial to the process, but in my experience, allowing the faculty to feel heard and being transparent earlier in the process generally helps.
Pettegrew: OK, thank you. Ellen, another one for you. This is very interesting: “We are considering placing a pause on tenure and promotion in part due to the COVID crisis, but also because our process in general is laborious and needs overhaul.” So the person says they’re making other changes to the faculty handbook now but will not be able to change all of the provisions at this time. So would you recommend making a note in the handbook that they’re putting a pause on tenure and promotion for the 2020-2021 academic year?
Babbitt: Some questions are too good, and they’re very difficult to answer. Pauses on tenure and promotion processes are something that institutions do consider and they can do. It’s difficult in a way because we have these very specific processes and timelines in our handbooks. And we’re basically changing that to the extent it’s deemed contractual. People can really complain about it. But on the other hand, if you don’t interfere with their basic ability to apply for tenure, apply for promotion at some point in the future, there’s not a lot of damage associated with that. So in some situations, we do recommend that. I mean, it’s better than starting to terminate people or not tenuring them, not being ready to address this in terms of your criteria and your procedures. It’s really better to put a pause on it. Whether it should go into the faculty handbook may depend in part, upon whether the faculty handbook needs to be approved by the faculty.
I mean, the faculty may not agree with this, and this may be a decision that the faculty doesn’t necessarily get to agree with. If the administration thinks it needs to put a pause, it may just have to do it. And that’s something that if you can make the faculty whole, if you can talk to them about why this is happening, and if on the other side, their rights are not impaired and they still have the same amount of time to apply later for promotion and tenure, you’re not going to have a lot of legal risk arising from this. If you put anything into the faculty handbook at this point, I might broaden it and put in a general reservation of rights in extraordinary circumstances to modify the timelines for tenure and promotion considerations or to change the timelines or put pauses or something like that.
As I sit here, I don’t have the language right in my head, but I might broaden it rather than making it specific to 2020-21 and put in a general reservation of rights, which I do recommend because we get situations all the time in which we have to modify the timelines for tenure or promotion, or we have to change the procedures to address a specific, very unusual situation. Put in a general reservation of rights for someone in extraordinary circumstances to change the timelines or the procedures for tenure or promotion. It’s still a hard sell, but in realistic terms, it’s something that we should at least try to explain to our faculty. And you can put in procedural protections, but that’s what I usually recommend in these situations.
Pettegrew: Lisa, another one for you: “How long does a change of control typically take when you factor in the time required to get regional accreditor approval? And is there any way to expedite that?”
Parker: Generally speaking, it takes about a year to get through a change-of-control process, but there are a lot of different factors that come into play, but usually it takes at least a year. And that’s because in particular, the institutional accrediting agencies have a fairly rigorous process to go through in order to receive their approval for changes of control. And then in addition, as we’ve already talked about, you’re going to need your state regulatory authority to approve and you also are going to need to make sure that the U.S. Department of Education approval is also obtained. So because of all the approvals required, it’s very challenging to expedite the process. If you have a very good reason for having to expedite for some reason, you can always make your case to your institutional crediting agency, because they’re usually the longest timeline to see if there’s anything that they can do to expedite it. Most accrediting agencies are fairly set in their timelines, so that may be hard to do, but you can always make the ask. But at a minimum, it usually does take about a year.
Pettegrew: OK, thank you. Kate, another one for you. The person wonders: “How do we balance furloughing employees and being transparent about why we’re doing it, but at the same time, providing support and assistance to them? And what might that assistance look like?”
Leveque: Yeah, so there’s a lot of different types of assistance. I know a lot of what I’ve helped some institutions with, especially recently, are giving staff members, or I suppose faculty members who have been furloughed, information about what resources are available outside of the university. For example, unemployment resources, how to apply. Some states have mass filing options where the institution could file for unemployment on behalf of the employees who have been furloughed to take out some of the time that usually comes with waiting for benefits. In general, what I would suggest is that any furlough decision, the impacted employees, there’s a meeting or a communication with them, one on one or in small group sessions, where you can communicate the reason for the decision and the background. And certainly how long you think the furlough is going to last.
As I talked about earlier, WARN Acts may apply in general, if a furlough is going to last six or more months. If you’re under that threshold, you want to tell employees your anticipated return date. You also want to communicate with employees about what they can do during the furlough period and what they can’t do during the furlough period. If employees are furloughed, they shouldn’t be working, or if they are suffered or permitted to work as the wage-and-hour laws say, they need to be paid for that time. And in general, you’re furloughing employees as a cost-cutting measure.
And so you don’t want to pay employees when they shouldn’t be working. And so you need to just have that open communication to make sure that everybody knows what the expectations are, what the length of time is, how it might impact other benefits that they have through the institution. For example, will it impact short-term disability benefits? How will it impact an upcoming leave of absence? How will it impact health care benefits? All of those things should go into the planning process and having a good Q&A for employees or being prepared to answer those questions in advance that you know are probably coming up is always a great thing to do in the preparation phase.
Pettegrew: OK, thanks. Ellen, here’s another interesting one, if you’d like to take this one: “Should we put a force majeure clause in the catalog?” And again, I’m assuming that’s come up because of the pandemic situation.
Babbitt: I’m sure it has come up because of this. And I think we’ve all wondered about that, thought about it, seen some information about it. And I guess we would want to clarify what we mean by the catalog. I presume that what we’re talking about here is student admission materials, marketing materials, and course catalogs, and program descriptions. But I also think that this is a question that’s pertinent to agreements that we enter into, affiliations with other institutions, and faculty handbooks as well. Of course, it’s not as easy to change a faculty handbook, but these are issues that we’re thinking about. Well, let’s take it in the context of students. We can do that. We have to be very careful what we’re communicating because of course, anytime you put material into student catalogs that sounds too much like lawyers wrote it and like you’re just covering yourself, you’re sending the wrong message, and you’re communicating in a way that’s not going to bring people in the door.
And we always are balancing our considerable enrollment needs with our need to be honest and transparent and clear going forward. And that’s going to be so critical as we try to bring people back to campuses and as we try to deal with this and communicating in honest and clear ways. So, I would say we can put those into our catalogs. We have to be very careful what we say. And we have to recognize that this will only apply prospectively. It’s not going to address the fact that we had to move things to remote learning. We had to tell students that they couldn’t live in the residence halls. We had to change their meal plans. And that’s a whole other subject of litigation and issues, the fact that we had to change things so precipitously, and it’s just a sympathetic story. Obviously we didn’t do it because we wanted to, but these kinds of clauses are only going to apply prospectively, and they need to be carefully crafted. They will also depend upon your state law, and states will respond differently to this. And there’s going to be a development of the law in this area. So I would say we can add things going forward. We should recognize they’re going forward and we should be very focused upon state law developments in this area.
Pettegrew: That’s great advice too. Lisa, another interesting one for you also related to the pandemic. The person asks: “How are accreditors responding in the face of COVID-19?” They’re aware that at least one accreditor has extended the 2020 accreditation statuses to 2021, and they wonder if others are doing the same.
Parker: That’s true. So accrediting agencies have been having more flexibility due to COVID-19. And so for example, as you already stated, they are extending terms of accreditation for certain institutions due to COVID-19. So if your institution is about to be renewed for accreditation and that deadline’s coming up, there’s a chance that that deadline was extended in terms of when your accreditation expired, which is good news, by the way, for institutions that are currently under some sort of sanction from their accreditors, such as probation or warning. So some of those institutions have also seen a little bit of a longer timeline, which is a good thing if that particular institution needs more time to get out of that sanction situation, in which they’re currently operating.
But probably the biggest accommodation that accreditors have made is just the ability for programs that are ground-based programs that were not approved to be online, to quickly come online because of COVID-19. And so that obviously has been, a lot of flexibility have been shown there, and that’s been really helpful for institutions that were trying to figure out how to respond when their students could no longer be in class. The other thing that accrediting agencies are doing is that if an institution had accrediting agency onsite visits scheduled during this COVID time, many accrediting agencies are moving that visit to a virtual visit. And I think at first that always sounds good to an institution: “Oh, I’m going to have this virtual visit. I’m not going to have to deal with folks in person,” but it’s important to recognize that even though it’s virtual, it doesn’t mean that it’s just going to be just reviewing an assurance argument or self-study, but that it’s going to still need to be interactive.
Plus, if an accrediting agency decides to go with a virtual visit based on guidance from the U.S. Department of Education, the accreditor then needs to follow the virtual visit with an in-person visit. So in that instance, a school could actually end up having two visits, one virtual and one in-person. So those are some of the things that accrediting agencies are doing.
Pettegrew: OK, thank you. Kate, another one for you. “For exempt, non-faculty employees, are salary reductions in general legally preferable to unpaid leave or furloughs?”
Leveque: This is a great and thoughtful question. And it’s one that many are debating. So state and federal wage-and-hour laws have some restrictions on the ability to reduce pay of exempt employees who work at all during the workweek. And I touched on that very briefly earlier. There are a few exceptions, but generally the FLSA requires that exempt employees must be paid their full salary if they work at all during the workweek. So for example, if a private institution wants to furlough exempt staff members and reduce their pay for the time that they don’t work, the institution generally has to furlough the employee for the entire workweek. And they must ensure that the employee doesn’t perform any work during that workweek, including responding to emails from students or faculty or other staff members. With very limited exceptions, if an exempt employee works at all, they’d have to be paid.
So you wouldn’t be able to say, “You’re going to take one day off per workweek” for an exempt employee. “And we’re going to pay you four-fifths of the weekly salary.” So furloughing exempt employees can be quite the commitment because you’re doing it in one full week increment for the most part. As a result of that, some institutions have opted to prospectively reduce an exempt employee pay by, say, 20%. While at the same time they reduced the employee’s FTP status to .8, meaning again, that employees might not be required to work one day of the week. It doesn’t sound like it’s much different, but the way that you communicate it is not through a furlough, but it’s through a salary reduction. And that’s how you’re legally compliant. Because the employee is exempt, that reduced 80% salary would be paid regardless of the number of hours that the staff member works.
So if they work 32 hours, they would get that reduced salary. If they worked 45 hours, they would get that reduced salary. Unless you plan on furloughing exempt employees in full-week increments, that’s likely the legally preferable option. However, you always want to make sure that you don’t reduce that salary below the weekly salary threshold for the employee’s exemption. For our staff members, that’s generally $684 per week. Otherwise you’ll lose the exemption and you’ll be subject to minimum wage and overtime requirements. So on all of these issues, I always recommend to involve counsel in the furlough or the salary reduction decisions and weighing the options of what’s legally compliant and what you can do.
With non-exempt employees, with hourly employees, the decision to furlough is a lot easier to implement because you’re essentially just not paying the employee for the hours that they don’t work. But for exempt employees, it becomes a lot more complicated. What employees lose out on if you reduce the salary rather than furloughing them for one full week, they’re generally not going to be entitled to unemployment for that period of time. Whereas if they’re not working for an entire work week, they might be entitled to some unemployment for that week, depending on the state unemployment laws.
Pettegrew: Thanks Kate. Ellen, here’s another one for you: “What are the student-related risks associated with the elimination of a program or major, and then from the loss of accreditation, if that might happen? What can we do to reduce those risks?”
Babbitt: Well, first let me talk just a little about the risks themselves, because they’re significant and we can do things to reduce them. But we have to recognize that there’s a reason that attorneys are always telling everybody to prioritize the interests of the students in this situation. Not just because it’s our mission to serve students, but also because the legal and accreditation and financial aid risks are big. First of all, the two kinds of legal claims we’re most likely to see are, first, breach of contract. That’s a breach of our promises. And that’s the argument that closing or reducing a program or for whatever reason, because we lose accreditation or because we have a programmatic reason to do so, is inconsistent with what you promised in your marketing materials, in your admission materials, in your program descriptions, in course catalogs, or individually, or inconsistent with oral promises from admissions personnel or program staff.
And that’s the first kind of claim that we see. And that, for instance, is what we’re seeing in the class action litigation by students claiming that the conversion to remote learning is inconsistent with their contracts, with the promises the institution made, and isn’t giving them the benefit of their bargain. That’s the first kind of client we will see.
Second, we’ll see fraud or consumer fraud claims. And I know this seems incredible that boards and leadership would work so hard to make good decisions, and then they’d face fraud or consumer fraud claims. But this is the kind of claim that will be faced in some situations that can be very serious. It’s an argument that the institution admitted students or encourage them to enroll knowing that the program might not get accreditation, might lose accreditation, might close, and they might not be able to finish.
And that can be either a common law fraud claim under your state law or a consumer fraud claim, if you’re in a state that has a consumer fraud, a Deceptive Trade Practice Act. We can also face Department of Education or financial aid issues associated with closure. And of course, depending upon the timing of a decision to close, there can be a dramatic enrollment or reputational effect upon our operations.
But focusing on the legal risks, these can obviously be very serious because a lot of students may be impacted by a program closure or a loss of accreditation. Let’s say you have 100 students in a program. If each of them only has $1,000 or $2,000 worth of damages, that’s still a lot of money. And usually it’s a lot more. So it’s very important just from a risk management perspective to minimize these kinds of situations. And the number one thing to do is to incorporate, embed, in our planning and really prioritize, making sure that the students are taken care of. In the situation of converting to remote, that making sure that the students can access this and they get as much as we can give them of what they’ve paid for.
And I don’t want to get any more specific than that about the current class action litigation, but that’s an example. When you decide to do that, you still have to make sure that students can access this to the best of their abilities and to the best of our ability to offer information. But usually we’re talking about making sure that the students can finish their program elsewhere, keeping a program open for a reasonable period of time, being flexible and helping them find solutions, or maybe transfer into other programs on campus. These are things we can do. I’d say caring for students and prioritizing their interests are the way that we manage what can be very serious risks.
Pettegrew: And actually Ellen, this is sort of in the nature I think of a follow-up question to some of what you were saying. “You talked about the student claims, but have courts granted students any relief in the program closure context? And if so, what types, injunctions, monetary damages, something else?”
Ellen? OK. Ellen got cut off. She’s going to call back in. So we’ll try to get that question back to her when she does.
Lisa, let me look for a good question for you. This actually may be one for both you and Ellen, but if you could start: “Do you have any examples to offer of what seem to have been particularly effective institutional mergers?”
Parker: Without sort of naming names, the institutional mergers that we’ve worked on and that we’ve seen go the best are situations where there has been a great deal of planning. And I know that’s a hard thing to say because we’re also hearing now from institutions that are thinking, “Oh my gosh, we’re really worried about our finances in light of COVID-19. We want to partner with another institution, or we want to merge with another institution. We want to do it quickly.” So it’s a balancing act, but the mergers that go the best are when really there’s careful planning on both sides. Because if you’re doing a true merger, it’s not just merging your students, but it’s a merging of the cultures. And it’s making sure that everyone is heard and that things are really carefully thought through. So to have that be successful, the best situations are ones where there’s careful planning, there is extreme thought in terms of communications. I mean, when we see mergers and other deals go bad between schools, it’s because the communications plan often hasn’t been fully developed.
So having a really comprehensive communication plan that addresses, “What does this mean for students? What does it mean for faculty? What does this mean for staff?” All of those things are really critical, making sure that what set is clear to what Ellen was talking about earlier. You don’t want to have any claims later that things were said that were not accurate. So making sure communications are clear and that they’re really comprehensive and that everyone sort of will know where they stand once the transaction closes are key to success.
Pettegrew: OK. Thank you. Kate, I think we may have touched on these issues before, but I’m not sure we answered this exact question directly: “What if a faculty handbook procedure is impossible to apply or just takes too long to apply? Does the board have any inherent right to take action?”
Leveque: So there’s no one-size-fits-all answer here. But in general, you want to take a really close look at your handbook and determine if there are procedures for changing the policies or for taking action. Some handbooks limit the board’s right to make changes, or to take different actions without following a very explicit process or getting approval from the faculty. And so if you don’t do that, you would have contractual or governance issues. So you want to take a look at that first. Without that limiting language, the board might have a right to change procedures.
Our preferred approach is always to do that before there is an issue by following the process outlined and in your prior practice or specifically outlined in the policies. I always think that it’s a little questionable to change or repudiate a handbook in the middle of the process. But if you want to undertake that, we recommend treading lightly and trying to do some of that communication and getting potentially some sort of faculty group involved in making some of those changes, just to get some buy-in before you make a change that’s going to negatively impact the faculty.
I think that it’s similar to the response that Ellen gave when we talked about putting a pause on changing the tenure procedures, or even looking at tenure for a year. And I think you would want to go through kind of the same process or procedures in adding something or making a change now. And just go in with your eyes wide open, to the extent that you’re not following the procedures outlined in the handbook, of the inherent risk there.
Pettegrew: Thanks, Kate. And Ellen, I understand we have you back.
Babbitt: Yes you do. Hopefully I can stay on this time. Sorry. I don’t know what happened.
Pettegrew: OK. I will go with follow-up question I was trying to ask earlier. You discussed the types of claims students might make. And the participant would like to know, “Have courts granted students relief in the program closure context? And if so, what types? For example, equitable relief, injunctions, monetary damages, etc.”
Babbitt: And the answer to that is yes. And I’m sorry to say all of the above. It’s rare. It would be rare that a court would issue an injunction saying, “No, you can’t close a program, board, or leadership. Yes, you have to keep it open.” Although that has happened before in rare situations. But if an institution is found to have breached contract or breached promises to students, or worse, to have violated a consumer fraud statute, you can be liable for damages. And that would be what it actually costs the student as a result of the loss of accreditation or the closing of the program. And that could include lost employment or delay in being able to start employment because you can’t get the degree or the certificate soon enough. So it’s damages. And these can be significant for a number of students.
It can also be punitive damages in some states. It will vary depending on the state law, but some states’ Consumer Fraud Act provisions allow for liquidated damages, a penalty. In Illinois, I believe we have double or triple damages for over the actual damages in a situation of consumer fraud. Also, and this is something that can often dwarf the damages that have actually been incurred, there could be an award of fees to the plaintiff’s counsel and the students who bring the litigation, and that can dwarf the damages very quickly. You could have a situation in which the student’s damages don’t add up to more than $10,000 or $20,000, but the attorney’s fees add up to $500,000. And this has happened. In fact, in this situation, I’m thinking it was way more than $500,000.
So I’m just saying I always kind of hate it when I’m on a webinar and an attorney starts to talk about how much these types of lawsuits can cost. But the truth is that these are very serious matters that need to be addressed. And they need to be factored in by you and your counsel as you plan and as you execute upon these decisions. Take care of students, put them first. And I can’t say it any more strongly than that. And this is one of the reasons why.
Pettegrew: OK. I think we can take one more question today. And I think here’s a fairly good general one. So I’d invite you all to chime in on this: “For institutions currently contemplating a change to a program, a merger, or an institutional closure,” — it’s actually two part — “what are the most important actions they can take to, first, minimize liability and, second, minimize reputational risk around their decision?” So any of you who want to jump in on that, feel free.
Parker: So this is Lisa and I’ll say something that I said earlier, but I can’t stress this enough, which is that one of the things that’s so important is just having really good communication. And as Ellen, I think, mentioned earlier, when you have good communication, you build trust. And so to the extent that you can make decisions in a shared governance structure, which frankly is not always possible when you’re doing a transaction such as a merger, but to the extent that you can incorporate others into that decision making and that your communications as to what is happening, how it’s happening, and why it’s happening, and what this means for students, faculty and staff, really goes a long way. And in particular, making sure, as Ellen I think already said, students come first.
And we are seeing that really clearly on the new federal regulations that go into effect July 1. They’re extremely focused on program closures, teach-outs, and how those have to make sure that students are well taken care of and are treated equitably in the process.
Pettegrew: OK. Ellen or Kate, do you have anything you want to add to that?
Leveque: I think along with communication, you obviously want to be able to make these decisions quickly. But I think putting some time into the planning process and making sure that you get your I’s dotted and your T’s crossed, and you’re looking and pulling all of the documents together. That’s going to be really helpful. And it’s going to help garner that trust. Because when you communicate, there won’t be 10 changes that you make after the first communication. You’ll be able to give information because you’ve properly planned on the front end and gotten all of your documents together.
And I think that’s one of the things that the publication does really well, to those that are going to go back and refer to it. Those checklists that we have will help with that planning process to really help you think through all of the different issues, which will help you mitigate the risk.
Pettegrew: Thank you.
Babbitt: I agree.
Pettegrew: Oh I’m sorry Ellen. Go ahead.
Babbitt: I was just going to say, there’s not much to add on that. So I would say yes, a communication plan that describes the fact that you have followed your rules. You have taken the interests of different constituencies into account, and you have prioritized the interests of students, really will pay off, in our experience. And we have more detail about that in the publication.
Pettegrew: OK. And we’re getting close to the end of our time. So I’ll just ask each of our speakers to share one thing they would especially like participants to take away from today’s program. Ellen, could we start with you?
Babbitt: Well, it may be the same thing we just talked about. But I think that I would say the planning, the identifying, and assembling of information, using your resources and educating your decision-makers really pays off, even in an emergency situation. I mean, think about true emergency. Even then, you have plans, you execute them, and you sit back and try to figure out what you need to be doing. So even in an emergency situation where minutes count, planning is essential to really execute properly. And in this situation, assembling that information, educating the decision-makers about the realities here, board members about the fact that they’re going to get emails and texts criticizing them, that there’s going to be press coverage. And this is important, and it really pays dividends. That would be something that I would really want everybody to remember as they go into any of these processes.
Pettegrew:Thanks, Ellen. And Lisa, your thoughts.
Parker:You know, just to echo the same, which is that planning it’s critical, as we’ve been talking about it. I mean, none of these things are easy. They require thought in terms of what’s required from regulatory authorities, what is said in terms of your own policy, how your students and other constituents respond. And the thing that I would say, that thinking of all that and then also putting it sort of in light of COVID-19, one of the things we’re hearing a lot of people say are, what are the silver linings coming out of this pandemic?
And in talking to institutions, one of the things I’m hearing them say is they’re taking this time to do some of that planning. And they’re also now thinking more creatively than they have in the past. Schools that didn’t think about getting online or online to the extent that they have in the past are now doing things differently. And I think that now is a great opportunity, if schools can afford to do so, is to take some time to plan how you want to look going forward in terms of your programs, in terms of your partnerships with other institutions, and how you can make all of this work to your advantage long-term.
Pettegrew: Thank you. And finally, Kate?
Leveque: Well, I think the other points are excellent. The only one that I would add that’s more specific to the employment perspective is, remember when you’re implementing these decisions that some of them take time to implement. If WARN applies, you have to give certain notice to impacted individuals. If you’re cutting salaries, some states require that you notify a certain period of time in advance. Some of the decisions that you’re making are not going to be able to be implemented tomorrow. And so building that into your timeline and thinking about that ahead of time is always a great thing to do.
Pettegrew: Well, thanks Kate. That will wrap things up today. Thank you very much to all our participants and to our speakers — Ellen Babbitt, Lisa Parker, and Kate Leveque — for responding to all these questions. UE is very appreciative of the many hours of work they and their colleagues at Husch Blackwell, Lisa Hoskins, and Karen Courtheoux, devoted to creating the publications and to doing it on top of their extremely busy practices. We all hope you found the program today helpful. And remember, the audio recording will be posted soon on EduRisk Solutions. This concludes the webinar, and you may now disconnect.