Podcast: Discussing Education with Nate Adams

Mia McKown: Hi, this is Mia McKown, I'm a partner at Holland & Knight, and I'm so glad that you are here today for our latest installment of Florida Capitol Conversations, where attorneys from Holland & Knight's Tallahassee office discuss hot topics and trends that they see as they practice law in Florida's capital city. Today, I am so glad to have my partner in crime, Shannon Hartsfield. She is going to help me ask some interesting questions to one of our other partners, Dr. Nathan Adams, who specializes in education law. Nate is a litigator whose practice covers a wide variety of topics that arise in complex commercial and appellate litigation and regulatory compliance. Nate has argued in federal courts nationwide and is a member of the United States Supreme Court, several federal appellate and district courts, the Florida bar, the Colorado Bar Association and the District of Columbia Bar. Before joining Holland & Knight, Dr. Adams worked for the Florida Executive Office of Governor and in that capacity he supervised several state agency legal departments. As you can see, we're really lucky to have Nate in our Tallahassee office because he has a wide variety of expertise in many topics that touch upon our capital city. But today we're going to pick his brain on the education issues and how it impacts the practice of law in Florida. Shannon, I know you are interested in this topic, and I know you have some questions that you wanted to ask Nate to get us started.

What Does it Mean to Practice Education Law

Shannon Hartsfield: Thanks. So Nate, what does it mean to practice education law in Florida?

Nate Adams: Well, first, I want to thank both of you for having me today. I couldn't have more prestigious hosts for this presentation, so thank you for doing this. You know, so education to me is the great equalizer. I've always viewed education since I began practicing law as kind of a civil rights issue. It's an amazing change that a person can go through to start out underprivileged, go through and get an education degree and come out on the other side and suddenly find that they're able to be professionals. So that's why I call it the great equalizer and a civil rights issue, in my view and the practice of law in education is pretty diverse. You know, we talk about K-12 and so some professionals and some lawyers are really focused there as counsel for school districts or practicing on behalf of IDEA kinds of clients in front of school districts. And then in addition, there's community colleges attorneys that focus, what we call in the state of Florida now colleges, they've given up the rubric of community before their names. And then the state university system or private colleges and universities after that. And in between, there's a fair number of institutions that we would, I guess, call workforce education providers organizations that do things like train people, how to be HVAC mechanics and the like. So it's actually a pretty broad ranging practice area. I think it's fascinating in the state of Florida, we're one of just a few states across the United States that has a board certification from the Florida bar in education law. And one of the interesting things about that board certification is that it is K through SUS. And so it becomes challenging even for legal professionals in education who probably only practice in one part of that, maybe they practice in K-12, they don't practice in state universities, but the board certification handles all of that. I've been privileged to be board certified. I also chair the Florida Bar Education Law Committee, where we bring together professionals across all of these areas of education law and try to build bridges between the defense side and the plaintiff's side looking for opportunities to encourage one another in unprecedented times since the pandemic began. There really aren't a lot of precedent that has been helpful to deal with some of the new developments in education law that have happened just in the past few years.

Education to me is the great equalizer. I've always viewed education since I began practicing law as kind of a civil rights issue.

Shannon Hartsfield: Nate, I'm glad you brought up board certification and that is quite an achievement. So kudos to you for investing in your career and being able to demonstrate to the public and to the bar your particular expertise in education. And with that, I'll turn it over to Mia. Mia, what questions do you have for Nate?

Florida's Educational Trajectory and Key National Developments in Education

Mia McKown: Nate, you said it best to me with all the different layers of education at the different levels. Florida, I like to think our state, contrary to some of the ways our national media portrays Florida, we're on the front end nationally for a lot of issues and a lot of things are developed here in Florida and are tried out here in Florida. What are you seeing are some of the key developments in educational law nationally that we can expect to either be adopted here in Florida, maybe in the next coming session or in the next couple of years. Where do you think we're going with educational law?

Nate Adams: What a great question Mia, and I want to first respond to the first part of your comments about Florida and what's happened in education law. In truth, Florida ranked second to the bottom nationally in K-12 education, really as recently as early 2000s, with just another southern state sweeping the bottom below us. And a lot of that had to do with the fact that unfortunately, in many school districts, minorities were not really getting an education. They were being shuttled through the education system, coming out on the other side, unable to read. And so the accountability process that Florida began implementing during Jeb Bush's years, really looking at it from the standpoint of objective assessments like the NAEP it's a national test that's undertaken across nationally. It's remarkable the extent to which Florida has climbed those ranks to now being within the top portion of those ranks nationally and is something to be proud of. The gains have been most notable among minorities, African-Americans, Hispanics, you know, we have a very diverse state. In fact, we have one of the most diverse states in the country. People who come here who can't speak English and they matriculate into public schools, unable to really do the most basic reading. And so it's a very difficult thing to take those kids and put them on grade level. But it has been interesting to see Florida make those changes and to be considered in professional education circles, one of the leaders in K-12 education. But what's happening nationally? There are a lot of things happening nationally. Some of them, of course, are pandemic related. And those issues, there's a lot of political disagreement about things like should we require masks in the schools or should we require vaccination in the schools? And those are issues that pertain not just to K-12, but to the state universities and the private universities. A lot of private universities are requiring all of those things and here in the state of Florida, we precluded in the K-12 level and even in the public post-secondary level. Some of those things.

There are a lot of things happening nationally. Some of them, of course, are pandemic related... there's a lot of political disagreement about things like should we require masks in the schools or should we require vaccination in the schools? Those are issues that pertain not just to K-12, but to the state universities and the private universities.

Mia McKown: Aren't they even maybe possibly having a special session, Nate, in Florida to address some of those issues?

Nate Adams: Well, exactly. So that's coming up here in just a matter of a couple of weeks, and folks are scrambling to figure out what's going to come out of that session. And, both in my capacity as chair of Education Law Committee and on this call, we're not here to have discussions about the pros and cons of those policies, but rather to point out that it really does become an issue that you know, the legal system has to deal with and the way that shows up right now is that there have been a series of class action lawsuits filed across the country against all kinds of educational institutions. When the students were forced back home, you know, they couldn't engage in on-site learning. And so in the K-12 section, that meant that students who were previously receiving aid for disabilities of various kinds now were not able to go on campus to receive that kind of aid. So there's litigation involving that. And then there's the litigation maybe more known about students who paid various fees for services on campus that they then didn't receive because they were forced home. A lot of those cases are still matriculating through the system, even here in the state of Florida. In the last session, there was a bill to address some of that, it is now Chapter Law 2021-232, which was essentially an immunity statute that was adopted to assist some of these institutions in connection with steps that were, quote, reasonably necessary to undertake by those schools in the wake of the COVID-19 pandemic. But in any event, those issues are still being worked out, and that's an area where we're likely to see a lot of litigation still. I think there's probably four cases pending at the state level by individuals who are upset about the mandates or upset about different aspects of that. And there have been rulings in the circuit courts that have sometimes been against the state. Most recently, the First District appeared to, without ruling on the merits, yet the First District Court of Appeal here in Leon County Circuit is the court that oversees all of the state agencies where state agencies have home rule authority. That court restored an injunction. Well, that court restored a law that the Circuit Court has essentially ruled was unlawful and again, without a ruling on the merits, has begun to signal in that case that maybe we're going to see a ruling in favor of the state or not. Anyway, fascinating issues all associated with the pandemic.

For-Profit vs. Nonprofit Institutions at the National Level

Mia McKown: Nate, you know, we're talking about the national level, so while our things are going through the state, I would think all eyes would, you know, on a national level would be seeing what Florida and other states are doing on the pandemic level as it makes its way through the court systems. On another issue, on a national level, are you seeing that the states are dealing with a difference between how to deal with for-profit education institutions and not-for-profit institutions? Is that something that has any type of traction or attention on a national level?

Nate Adams: Yeah, so that's a good question. So a decade ago during in particular the Obama Administration, there was major changes in the Title IV regulations, which are the regulations that pertain to financial aid for students. And there was a concern voiced in some respects bipartisan that for-profit entities were graduating students who came out with a lot of debt and may or may not have been able to find a career in a particular degree program that they majored in. And so that led to some significant changes in Title IV regulations that restricted the ability of for-profit entities in the area of marketing and required, for example, reporting on whether their students were in fact getting jobs and the like. During the last administration, that focus eased a bit. But again, in this administration, we're beginning to see efforts to again focus on for-profit providers with uncertain repercussions yet, but about rulemaking, and we understand it is still ongoing.

You know, another area that this really impacts is that nationally there is right now occurring what's called the student enrollment cliff and that is impacting at the university level. It's said that over the next 10 years, there will be fewer students to go to universities than was previously the case as a percentage of the population. And so what's happening in particular, at private liberal arts colleges, not for-profit in this case, but not-for-profit entities is that there is a great financial pressure on smaller institutions, which is also leading to a merger and acquisition effort nationally. Some of the schools are being purchased by other nonprofit institutions. Some are being purchased by for-profit institutions. The focus of some of these schools is being changed to online learning, and in any event, our firm has been involved in more of these mergers and acquisitions in the last year, impacting certainly colleges and universities, but even workforce education to a greater extent in the last year than maybe in the last five years combined at that level of merger and acquisition activity, being undertaken now because of the financial pressure on the institutions.

It's said that over the next 10 years, there will be fewer students to go to universities than was previously the case as a percentage of the population.

Mia McKown: That's really interesting. You know, we see that happen in what we think of the traditional business model, but didn't know that type of merger and acquisition was also happening you know, with the educational institutions, that's really interesting. Shannon, do you have any questions? 

Services Typically Provided by an Education Law Attorney

Shannon Hartsfield: Nate, in terms of sort of the day to day activities that a lawyer who practices in education law does, I'm sure it varies ,but what are some of the types of services that you tend to provide or that educational institutions seek you out for in particular?

Nate Adams: Well, kind of the full range, Shannon. Thanks for asking that question. Certainly, I get involved in mergers and acquisitions to assist with structuring those deals. But on a day to day basis, I might be involved in that, I might be involved in the litigation at the end of the day, a litigator. And so whether it's class action litigation, right now where we're handling trademark dispute between two universities over whether or not, you know, the trademarks that one is utilizing are protected or not. We do a lot of work in the area of licensure. You'll be surprised the number of institutions that are offering services in the state of Florida online that don't realize that actually they've got to be licensed to do that. And so sometimes they will get cease and desist letters from the Florida Commission on Independent Education, and then they'll start looking for somebody to help make sure that they can come into compliance with the requirements to be licensed in the state. I would say in that in that world, Florida ranks among the most regulatory of the states up there with the New York and California, Texas. There are some states where an online provider of education don't need to be regulated. But typically in Florida, if you're going to offer a degree program and even a non-degree program you've got to be licensed here. An example of a non-degree program that sometimes surprises even sophisticated providers, they don't realize they need to be licensed, for example, to offer a program that leads to a certificate. It's called in the state of Florida, a diploma program. And there are a few exceptions to that, for example, if you're a continuing education provider or contract training by employers of their employees. But for the most part, if you're going to obtain a certificate as part of a non-degree program, even a course, in the state of Florida, you've got to be licensed. So we deal with some of that. Finally, accreditation is another example I could go on and on, but accreditation is another example where we do a lot of work. Sometimes the creditors take adverse action against their institutions for various reasons. And when that happens, we can help institutions deal with that. Sometimes institutions just need to get accredited and actually, that's usually a joint effort both at the law firm and just an education provider to make that happen. So we deal with a lot of accreditation issues as well.

There are some states where an online provider of education don't need to be regulated. But typically in Florida, if you're going to offer a degree program and even a non-degree program you've got to be licensed here.

Hot Education Topics at the National Level Affecting Florida

Mia McKown: Nate, we talked a bit on some of the developments in Florida as it relates to the pandemic. When we were talking about some of the hot national topics in education. Are there other issues in Florida that you see that there may be some key developments in Florida educational law like critical race theory we're hearing I'm hearing a lot about that. Is that percolating at all in Florida?

Nate Adams: Yes, it is. In fact, this last session in 2021, we had four bills that fall into the controversial category within state politics. One essentially does require institutions to conduct surveys of students to determine whether or not those surveys feel as if they're getting viewpoint neutral presentations on issues like critical race theory or whether they're not. This last year, there was a foreign influence bill that was passed due to a lot of media around, in particular foreign countries that were providing grants and research money to institutions across the United States, and a concern that some of that research was potentially sensitive in nature and making its way back to foreign countries. We had a bill adopted this last year requiring disclosure of so-called foreign gifts to both the public and the private sector state universities in the state. And interestingly, gifts is defined to include contracts with foreign entities. It's a fairly broad concept. And again, that's a law that was just adopted. I'm trying to get the word out to my clients, but a vast majority, I think of institutions in the state don't even realize that this is a semi-annual reporting requirement that's kicked in under Chapter 2021-76.

One [bill] essentially does require institutions to conduct surveys of students to determine whether or not those surveys feel as if they're getting viewpoint neutral presentations on issues like critical race theory or whether they're not.

You know, another issue that's very practical that a lot of people think about again during the pandemic is nursing education and it's said that there's a radical shortage of nurses in the state really of all sorts of healthcare workers in the state. And that's been an interesting issue from an education standpoint in the state of Florida. For a while, the Board of Nursing was very restrictive on the launch of new nursing programs to the point where it was almost impossible for new institutions to enter the marketplace. Then came a switch about five maybe ten years ago, a little bit less, where the Legislature eased the rules so that more private educators could get involved in providing nursing education. More recently, that switch the other way, despite interestingly, the new shortage in these areas, and there are several reasons for that. But one is that when students take the national nursing exams, they haven't been scoring where the state legislature believes they should. And so that has led to a change in statute that says that if that's the case for a particular institution over two or three consecutive years, that they essentially no longer can offer that education. And it's actually an interesting policy discussion because it turns out that the institutions that kind of fall into that category of maybe not always performing up to snuff are also typically serving minorities and persons that have English as a second language. So there's actually some interesting policy issues regarding that right now. But I would say that nursing education is probably a foremost issue that the Legislature is going to take up again, probably this term to try to figure out what is the right balance between enabling persons who might not be able to get into a state university in order to practice nursing, to have options elsewhere, and you know, what are the standards that ought to be applied in those circumstances? Those are a few of the issues pending right now that I think are interesting.

I would say that nursing education is probably a foremost issue that the Legislature is going to take up again, probably this term to try to figure out what is the right balance between enabling persons who might not be able to get into a state university in order to practice nursing, to have options elsewhere.

Future of Online Learning, Title IX & Title VII

Shannon Hartsfield: So Nate, this has been fascinating. I had never really thought about some of the civil rights issues that you brought up and the diversity issues. Is there anything else that you'd like to mention that we haven't talked about yet, that people need to know about education law?

Nate Adams: Well, I think what's been interesting just like in healthcare, Shannon and Mia, you know, telehealth becoming a force in healthcare. No question, online education is here to stay. There were some institutions that had pioneered it prior to the pandemic, and we're beginning to, you know, graduate people just online. But I think it's fair to say that, that movement broadened substantially to the point where, you know, there's probably not a university in the state of Florida that doesn't have an online program. And including a program that you can complete within four years without ever attending in person. And likewise, in the K-12 sector, online education turned out to be essential for the kids that couldn't go to classes. In the meantime, what were they going to do, well they went online. I think what we're finding is that there are, you know, as with anything else, positives and negatives to this. And there's probably, you know, I don't think we're going to necessarily see a world where residential education goes away by any stretch of the imagination. But I think we will see a world where online education finds its place and it will be a significant and substantial place. It will be for some students, probably the only place they'll go. But I suspect for the vast majority, it will be both. So online education is certainly going to continue to be an area where we do a lot of work and consulting. Sometimes that's licensure related. Sometimes it's federal financial aid related trying to explain to institutions what can and cannot be done in that role. You know, it's also immigration related institutions in the state of Florida have to receive service recognition in order to bring in foreign students, and that is another area that we do a fair amount of work.

No question, online education is here to stay.

And finally, Title IX, an issue that we have not yet discussed, which is certainly right now sort of a core federal changes are occurring even as we speak in that area. That's going to continue to be an area that interestingly becomes an issue for online education too. Right now, Title IX, you know, we think of that in the context of athletics for women and, you know, another controversial issue transgender persons and how that plays out. But Title IX is also itself just an anti-discrimination provision, and it's a provision that applies therefore interestingly to both online and not online programs and when it comes to athletics, interestingly, right now, not only physical students on a residential campus matter for purposes of determining whether an institution has got the correct number of teams for males and females. But actually online students count in that process too. Title IX is going to go through, everybody expects, some major changes over the next two years, and that's an area where we help institutions, both when it comes to athletics compliance, but also just putting in place the right investigation protocols and handbooks and the like. And then finally, we do a lot of work in the employment space, and that's also Title IX-related as well as Title VII-related and implicates in the case of education, academic freedom, an area that I've spent a lot of time researching and writing about and doing some presentations on. So those are the issues that are near and dear to my heart. Again, I think personally, education is one of the most intriguing areas to practice law in and if we can ever help anybody listening here to any of those questions will even on a pro bono basis, it's something I'm passionate to do.

Title IX is going to go through, everybody expects, some major changes over the next two years, and that's an area where we help institutions, both when it comes to athletics compliance, but also just putting in place the right investigation protocols and handbooks and the like.

Mia McKown: Well, I think what we've learned, too, that there's a lot of nuances in Florida that might surprise people who are coming to Florida. And if they're interested in coming to Florida, what do you think might be some of the biggest surprises that they might face that's different from other states where they do business, Nate?

Nate Adams: Well, I think it's the licensure issue that I alluded to before. Actually, we're seeing a large number, interestingly, of Latino institutions coming into Florida, predominantly into Miami, Tampa, a little bit in Orlando. Oftentimes, these are very large private institutions in places like Central America and South America that are planting a flag here, and they're finding out that the rules are a little bit different than where they're coming from. And so that's the kind of work that we do a lot of and then the other area coming into the state of Florida, there are a fair number of institutions, particularly out of California, which is not a member of a reciprocity agreement called SARA. If you're in a state that is recognized by SARA, you commonly can count your licensure in the state where you are as applicable in other SARA member states. But California is, I think, one of the few states that is not a member of SARA. And so we find that some California schools who are coming into Florida are also learning that there are some licensure requirements here that are unique and unusual, and they're all designed to protect students at the end of the day. We have in the state of Florida, for example, a scholarship fund where if an institution basically goes bankrupt, it's going to hold those students harmless so that they can go to another school and find and complete their degree, which is, of course, totally needed and appropriate.

We find that some California schools who are coming into Florida are also learning that there are some licensure requirements here that are unique and unusual, and they're all designed to protect students at the end of the day.

Mia McKown: So where does the scholarship money come from that funds those?

Nate Adams: So it's part of the licensure process for an institution is that they pony up some funds and the amount depends upon their number of students and the number of their degree programs. But essentially, it's sort of a tax, if you will, that's imposed upon an institution to do business in the state of Florida.

Mia McKown: Well, it certainly sounds like there's a lot going on in education in Florida and on a national basis, and we really appreciate - I mean, frankly, we could have it seems like on a lot of these topics that you address, we can have separate podcast on all of those issues, there's so much to cover - but I really appreciate you taking the time to kind of give us a 10,000 foot perspective of education law in Florida. Not only what some of the changes that are happening, but also some of the challenges that clients face and who they need to contact for day to day advice. So thanks so much, Dr. Adams, and Shannon and I appreciate your time today very much.

Nate Adams: Thank you for having me.

Mia McKown: And again, we just want to thank everybody for joining us, and we hope and look forward to you joining us again on another topic that touches upon our great state of Florida and in particular, what's going on here in our capital city in Tallahassee. Thanks so much and hope everyone has a great day.