May 17, 2026, by Dr. Barry Ryan – To accomplish almost anything of importance these days seems to require the engagement of lawyers. This is absolutely true for institutions of higher education in so many aspects of their lives, but never more so than in the matter of potential mergers, acquisitions and partnerships. Full disclosure: my observations herein are a result of my decades as a professor, an administrator (including several presidencies), and as someone actively involved in accreditation from every perspective (including a six-year stint as an accreditation commission member). And for good measure, as an attorney for the last 30 plus years. Tempus fugit.
I often encounter persons who are quick to quote a misunderstood saying about lawyers. The origin is Shakespeare’s Henry VI, Part 2 (Act IV, Scene 2): “The first thing we do, let’s kill all the lawyers.” In context, however, it’s clear that the Bard is not advocating murder. Rather, the words uttered by “Dick the Butcher” are an indication that lawyers and their functions are supposed to stand as a bulwark against tyranny and chaos.
Likewise, the skillful and ethical lawyer can, in the crafting of merger and partnership agreements, help prevent either party from taking advantage over the other (tyranny) and also preclude mutually harmful descent into institutional chaos.
So, on the one hand, as we shall see below, lawyers can play an essential and positive role in such higher education transactions. On the other hand, they should not drive the process or defeat the legitimate purposes of the parties they represent. What’s the balance and how do you find it? And how do you find the help you actually need?
Many institutions considering such transactions turn immediately to their inside counsel or usual external attorney or firm. While it may be prudent to consult a known lawyer to begin the task of finding the specialized legal counsel that is required, it can be a mistake to assume that relying on a current lawyer will be sufficient. Here’s why.
Small to medium-sized colleges may not have the luxury of inside counsel, or even a relationship with a firm that knows well their inner workings. Most such attorneys are retained primarily for employment-related matters: employment agreements, equipment leasing contracts, personnel disputes, terminations, employee manuals and so on. It’s obvious that those types of legal services, while essential for day-to-day operations, have little to do with the considerations of significant partnership or merger transactions. In fact, most attorneys who practice with smaller colleges have no experience at all with higher ed mergers and acquisitions (as is also true of most presidents, provosts, board members, etc.). These are rare events in the life of an institution, thus there are seldom any experts already on board the institution with the requisite real-world knowledge.
So how, and when, should such colleges retain experienced and capable counsel?
Let’s consider the when, first. An institution does need at least some preliminary conversations with and direction from counsel at the outset of any consideration of a partnership or merger. Once it becomes a serious topic of conversation among institutional leadership, checking in with counsel is a good idea. A competent higher ed lawyer can help establish the lay of the land from the outset, saving the college significant time, money and energy pursuing things (rabbit holes) that may not be legally possible or advisable.
These can include implications of the legal structure of the institution (currently and after the proposed transaction), state laws pertaining to non-profit entities (or corporate law if for-profit), laws related to boards and their duties, ownership types, implications for real estate (including zoning and local ordinances) and so on.
All this is in addition to addressing completely the requirements of accreditors (institutional as well as programmatic), state education authorities and the federal Department of Education (which monitors and approves or denies a CIO – Change in Ownership/Control). As you can see, this endeavor is neither for the faint of heart, nor for the amateur!
You will absolutely require highly competent and experienced guides (lawyers and non-lawyers) to make your way through this process. Some you may want to hire from outside and bring on board, others you may want to engage as consultants. Such experienced and talented people are available. Coordinating them and your administrative team for the duration of the undertaking, though, is a job in and of itself.
An internal point person should be designated at your institution, usually as the head of a committee. Critically important is that such a person be impeccably trustworthy. In addition, that point person must be able to relate well and closely with your internal and external teams, most particularly the president, provost, CFO, board chair and a few others on whose expertise and dependability you will come to rely.
As the process moves forward, it will be important to consider adding more internal team members. Faculty leadership, Human Resources, communications, alumni, external relations, student affairs, essentially all areas should ultimately play a part. The timeline needs to be flexible for carefully adding people to the internal committee.
Where to turn for external help, though? Let’s start with the legal area, not forgetting the financial and operational as well.
There are a number of well-known higher education law firms in the US, mostly concentrated in bigger cities. Because there are many different types of legal implications inherent in such transactions, it is often best to work with an education practice group that is within a larger, more comprehensive law firm. Solo practitioners are harder to find and evaluate, which means that the typically more expensive firms, often including 100 or more attorneys, may be the best option. An adviser (inside counsel or someone similar) who knows your own situation well may be the best way to help you and your senior team sort through this part of the selection process.
Initial meetings with prospective firms can establish the rough outlines of an engagement, including the key question of whether billing should be on an hourly versus a project basis. If hourly, you’ll probably encounter a sliding scale, depending on the level of the attorney being engaged for a particular aspect. So, for example, a very experienced senior partner may bill at $750 an hour or more. Junior partners might be somewhat lower, associates below that, possibly at something in the $200 to $450 range. Remember, these numbers are hypothetical only. Ranges vary greatly, depending in part on your region as well as the experience (and success history) of the firm in such matters. The actual number is dependent on the hours billed, which relates both to the complexity of the matter within the larger proposed transaction, as well as the effectiveness of the attorneys engaged. What’s the total number? It’s almost impossible to hazard a guess, but there are better and worse (i.e. more expensive) ways to manage this part of the process.
There are a number of tools for tracking, projecting and managing legal expenses. But your inside counsel may be your best management tool. There are other options, too, if you don’t have a current lawyer to whom you can entrust these management and connection point duties.
There are many tips to avoid wastage in this process. If you have good external advisors, they should be able to help you with learning and applying these techniques. These can involve adjusting the number of partners/associates, managing meeting participants and length of those meetings, keeping the points of contact within the institution in check, even just asking for any non-profit discount if applicable, and more.
It is important to remember that most lawyers have little idea about how higher education institutions function. Even fewer know how a merger or similar process works in higher ed. You don’t want to spend massive amounts of money just educating your legal advisors about such things, which is why is it more advisable to hire firms with such experience and expertise right out of the gate. Again, your current counsel and the external advisors you engage should be very helpful in this important aspect.
Know that the pace and scale of legal counsel during a transaction will change as it goes along. The initial discussions, the due diligence phase, the construction of the letter of intent, progress towards a definitive agreement, all mark increasing tempo and complexity. Of course, after an agreement is reached there are still a number of key milestones which will require counsel through the statutory, accreditation and related processes that lead to completion.
How long can this process take, from inception to conclusion? In my experience, Part 1 takes at least nine months to a year if done well. During this period, starting from when an institution makes the decision to move forward on an acquisition or merger, then achieving internal approvals and putting together a team (external and internal), and then organizing for due diligence is a complicated process. Throughout this time frame you’ll be using various approaches to assess potential good matches for the partnership.
The due diligence process is never quick, and shouldn’t be rushed. But the more you know about your own institution (and the prospective partner) makes a huge difference in the length of the due diligence period. It can take anything from a few months to longer than a year. Again, preparation and a sharp team really help.
Critically important in the due diligence portion is the role of your financial advisor. Yes, it’s important to have a very good CFO who really understands your institution. But few higher ed CFOs have been involved in merger and related processes, so even the best will have a steep learning curve.
To augment your internal finance and accounting expertise will most likely involve the addition of one or more external experts. They need to work well and closely with your leadership team, as well as with your legal counsel. The due diligence work that they will need to help manage is vital to the success of the whole transaction. There are two parts to this: first, producing everything necessary for due diligence of your own institution, and, second, helping establish what you need about your institutional partner. Missing anything important in this effort can create difficulties that can linger far into the future.
Let’s say you’ve done the introductory work, found and approached the right partner, completed mutual due diligence, received accreditation and other non-federal approvals and signed a definitive agreement. Are we done yet? Of course not, even though it may start to feel like you’ve already gone through a merger.
Much of what happens next is in the hands of the Department of Education, following “completion” of the merger – the Change in Ownership/Control (Part 1 in the 2 part process). After all those approvals have taken place involving various authorities, the Department can allow progress to Part 2, which essentially is an approval of the structural merger. The timeline is uncertain given the changes in policy, staffing, etc. that have involved the Department in recent years, but what is not uncertain is the continuing need for legal counsel and external advisors.
Doing all of this right takes time, money, dedication, patience and many other virtues as well! Getting it wrong, however, is painful and can be disastrous for all involved – including most importantly the students!
But what if you get it right? You’ll have pulled off something you can be proud of and will be part of a successful legacy of your institution. Students, faculty, staff and their loved ones will, if all goes right, be much better off than they would have been – especially if the only alternative would have been a closure.
Dr. Barry Ryan is a seasoned higher education executive, legal scholar, and former president of Woodbury University. He is the Co-Director, Edu Alliance’s Center for College Partnerships and Alliances, and a legal scholar. With more than 25 years of leadership experience, Dr. Ryan has served in numerous roles, including faculty member, department chair, dean, vice president, provost, and chief of staff at state, non-profit, and for-profit universities and law schools. His extensive accreditation experience includes two terms on the WASC Senior College and University Commission (WSCUC), serving a maximum of six years. He is widely recognized for his expertise in governance, accreditation, crisis management, and institutional renewal.
In addition to his academic career, Dr. Ryan served as the Supreme Court Fellow in the chambers of Chief Justice William H. Rehnquist and is a member of numerous federal and state bars. He has contributed extensively to charitable organizations and is experienced in board leadership and large-scale fundraising. He remains a trusted advisor to universities and boards seeking strategic alignment and transformation.
He earned his Ph.D. from the University of California, Santa Barbara, his J.D. from the University of California, Berkeley, and his Dipl. GB in international business from the University of Oxford.
Edu Alliance Journal 