by Laurie R. Bishop
Last year’s abrupt closure of Mount Ida College in Newton—and its rapid acquisition by the University of Massachusetts at Amherst—highlights a new and frightening reality for many small, private colleges in the Commonwealth and nationwide. Advancing the legacy and mission of many such institutions, while simultaneously navigating between the desire to retain independence and the importance of avoiding sudden closure, now seems to require a new level of ingenuity and appetite for organizational change. Nor is this challenge unique: in Massachusetts alone, over the past few months Newbury College announced its impending closure, while Hampshire College is exploring a merger.
Faced with mounting debt, shrinking enrollment, and a failed attempt at merging with a sister school, Mount Ida appeared left with few options. The resulting transaction left students, staff, faculty, politicians, regulators, and lawyers with more questions than answers. Students, staff, and faculty felt betrayed; the Massachusetts Senate launched an inquiry into the speedy purchase by UMass Amherst with state funds; the Attorney General opened an investigation into whether top officials at Mount Ida College violated fiduciary obligations; even Governor Charlie Baker called for new Board of Higher Education regulations requiring institutions to provide notice of “any known liabilities or risks which may result in imminent closure.” Overall, it seemed an ignoble ending for an institution that had survived for over a century.
Yet this need not have been the outcome. Colleges and their counsel facing similar circumstances can take key concrete steps to help avoid the Mount Ida pitfalls. Early and ongoing institutional consideration of key warning signs, understanding the array of options short of outright closure, remaining cognizant of legal requirements and deadlines, and deploying effective public relations are all critical in guiding institutions through such existential challenges.
Recognize Early Warning Signs
Small, private institutions like Mount Ida usually exhibit early warning signs well before closure is imminent. Senior administrators and board members should be aware of their institution’s financial conditions and demand frequent updates on comparative market data with objective gauges. Warning signs include excessive deferred maintenance (sometimes paired with incongruous investment in new facilities meant to jump start growth), low endowment levels, and falling enrollment numbers with corresponding deep tuition discounts to increase yield.
When warning signs surface, institutions need to be realistic rather than idealistic about what improvements or corrections can be made, and how long they may take. “Giving it the old college try” for too long—instead of seriously exploring other options—can prove fatal.
If a merger or acquisition is a possibility, acting when time is still on your side—before the major repercussions of those early warning signs have begun to emerge, such as staff layoffs and cuts to programs—will pay dividends. Combining institutions is a lengthy process, and doing it well, with a view towards respecting and maintaining the individuality of each, takes even longer. Merger counsel and other advisors, including public relations support, should be retained early. Working with merger counsel is critical not only because they are experts in the field, but also because as the merger begins to develop and grow, in-house counsel for the institution will be engrossed in tasks such as managing board, presidential, and cabinet questions, along with the continued day-to-day operations of the College.
Assess Your Options
Distressed small colleges should be aware that their options are not limited to closing entirely (like Mount Ida) or to traditional acquisition by a larger institution (that may or may not care about maintaining some semblance of the smaller college’s identity). Legal counsel has a key role in assisting institutions in evaluating the viability of the wide range of options that are available.
One alternative is to solidify an existing long-term partnership to provide enhanced offerings for students and a deeper reserve of resources—financial and otherwise—to draw upon. Depending on the existing depth of the relationship, this may also lessen the distraction and upheaval often caused by mergers and acquisition. The School of the Museum of Fine Arts recently adopted this approach with Tufts University, with which it has partnered since 1945. The result is the innovative “SMFA at Tufts,” where students have the option of pursuing a BFA or 5-year combined BFA + BA/BS degree in conjunction with Tufts.
Another option is to capitalize on natural and mutually beneficial geographic or program synergies. For instance, the 2016 merger between Berklee College of Music and The Boston Conservatory, the oldest music conservatory in the United States, presented such opportunities. With directly adjacent campuses in Boston’s Back Bay and similar commitments to the arts, the institutions were able to capitalize on and maintain their different areas of strength while providing additional and related opportunities to students of each. Similarly, Wheelock College’s merger into Boston University leveraged a natural geographic relationship to combine Wheelock’s unique focus on early childhood and education studies with Boston University’s significant resources.
Even when the fit seems natural to outsiders careful attention must be paid to the individual “identities” and missions of the merging institutions. Current students retain expectations of the pre-merged entity, and incoming students will expect an institution that reflects the one to which they applied. Donors may also remain loyal to the pre-merged entity, and expect future donations to support continuation of some of the pre-merged entity’s programs. In other words, the success is often based not only on synergies, but also (in part) on the preservation and respect of both institutions’ missions. Choosing a partner that complements your institution — as opposed to one that competes for the same students in the same area —can help in continuation of the missions of both.
Understand the Legal Requirements
If closure or a merger is imminent, counsel must ensure that key legal obligations are not overlooked or postponed by the institution’s administration. Under current regulations, institutions of higher education must notify the Massachusetts Department of Higher Education (DHE) of their intention to close “as far in advance as possible.” 610 C.M.R. § 2.07(3)(f)(2). The president of the institution must provide DHE with a signed Notice of Intent to Close, sent to the Commissioner of Higher Education. Per DHE guidelines, the written notice should include:
- A statement of intent to close and the general rationale;
- An estimated timeline for the closure, the anticipated final termination date, and the approximate number of students currently enrolled; and
- Disclosure of any preliminary discussions or plans with other institutions that may offer the potential for articulation.
The school must then complete the Independent Institution Notice of Closure and keep in direct communication with DHE during the closure process. This includes, but is not limited to, forwarding copies of all communications to students, former students, alumni, and the media regarding the closure.
Similarly, notice must be given to, and approval obtained from, the Attorney General’s Office when a public charity (such as a college or university) sells “all or substantially all” of its assets, or where there will be a material change in the nature of the activities conducted by the public charity. G.L. c. 180 § 8A(c). In practice, the Attorney General expects to receive an 8A(c) notice if more than 75 % of the organization’s assets are being disposed of. While this notice must be provided no later than 30 days before the closing of the transaction, the Attorney General’s office should be notified as soon as possible after the details of the transaction have been agreed, to avoid delay in closure. If an institution of higher education dissolves completely, it must file a dissolution complaint with the single justice of the Supreme Judicial Court for Suffolk County. G.L. c. 180, § 11A.
In the wake of Mount Ida and the growing number of closures, institutions in the Commonwealth may soon be held to earlier disclosure requirements and increased oversight. In early January 2019, the Massachusetts Board of Higher Education proposed a new process to screen, monitor, and potentially intervene when a private college or university exhibits symptoms of financial distress. The Board’s Final Report and Recommendations, which remains subject to discussion and debate, proposes that (1) the Department of Higher Education screen all private colleges using a metric designed to estimate whether the college has the resources “to fully teach out its current students”; (2) schools identified in the screening process be subject to an active monitoring protocol; and (3) if a school could not, in the Department’s judgement, ensure by December 1 that it has the financial means to complete the current and subsequent academic year, the institution would be required to notify students and complete a full contingency plan approved by the state. Schools that fail or refuse to take part in the process would be subject to potential sanctions.
When to Tell Your Students and What to Tell the Press
While certain merger/closure notice requirements are mandated by law, a far more difficult strategic question is when to tell students, parents, faculty and employees — and how to handle the press that will inevitably follow.
One of the key criticisms following the Mount Ida closure was the lack of transparency by the administration and the Board in announcing the closure. Not until March of 2018 — two months before the end of the school year — did Mount Ida officials reveal that they were in merger talks with Lasell College. Just two weeks after this announcement, the sale to UMass Amherst was announced, giving students, faculty, and staff minimal warning.
Given the significant disruption that closures and mergers can cause, critical to any successful merger is the early involvement and coordination of outside counsel with public relations professionals. Together, they can tailor a sound strategy for senior administrators that balances the critical importance of transparency with the need to maintain confidentiality for some period of time (to identify potential options, merger partners, and/or contingency plans). Wheelock College gave its faculty nearly two years’ notice that closure was imminent, and sent out over 60 requests for proposals to potential merger partners before their ultimate merger with Boston University. This allowed faculty, students, and staff time to evaluate their options, and allowed Wheelock to proceed with the best deal possible for the school and its constituents.
More School Closures Are On the Horizon
According to recent reports from the Chronicle of Higher Education, U.S. colleges expect to see a steady decline in enrollment, and more schools are likely to close or merge in the coming years. In Massachusetts, the decline in enrollment among all categories of colleges has been between 1.3 – 1.7% annually from 2013 through 2016. The result is that colleges and universities without large endowments rely disproportionately on enrollment numbers and tuition to stay afloat from year to year, and the amount they disburse in student aid determines their bottom line.
Indeed, Moody’s reported in July of 2018 that approximately 25 percent of private nonprofit colleges and universities spent more than they earned in the 2017 fiscal year. The July 2018 Moody’s report expanded on its close-to-accurate 2015 prediction that closure activity would as much as triple and mergers would double by 2017, observed that a future increase in closures toward the range of 15 per year, and reported that one in five small private colleges nationwide is under fundamental stress.
In light of these general trends and the Mount Ida debacle, counsel has a particularly important and valuable role to play at all stages: (1) Identifying risks early by reminding administrators to remain vigilant for financial red flags; (2) Keeping DHE and the Attorney General on notice when required if closure is possible; and, possibly most importantly; (3) Advising administrators on how to stay honest and transparent with your students, faculty, and staff while still meeting their fiduciary responsibilities.
Laurie R. Bishop is a partner at Hirsch Roberts Weinstein LLP, where her practice focuses on advising colleges, universities, and non-profit organizations on policies, procedures, and risk-management decisions. She serves as acting general counsel to Berklee College of Music, and assisted in their successful merger with Boston Conservatory of Music. Laurie is a member of the Planning Committee for the annual BBA Higher Education Legal Conference.
 The report does not specify which entity would be responsible for annually screening colleges’ financial condition, what score on the metric would trigger closer state monitoring and how, specifically, the 18-month warning would be triggered.