Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
6/4/2025
Proclamation “Enhancing National Security by Addressing Risks at Harvard University” (Jun. 4, 2025)
Proclamation from the President of the United States suspending the entry of foreign nationals seeking to study or participate in exchange programs at Harvard University. The Proclamation suspends entry into the United States for foreign nationals who seek “solely or principally to participate in a course of study at Harvard University or in an exchange visitor program hosted by Harvard University.” It attributes the revocation in part to Harvard’s prior litigation pertaining to student admissions criteria, alleged refusal to provide certain foreign student records to the Department of Homeland Security (DHS), and the pendency of “multiple Federal investigations.” It critiques Harvard’s receipt of foreign funding, citing an alleged $150 million from China, and also avers that the institution failed to adequately address anti-Semitic incidents on campus. The White House also issued a Fact Sheet in addition to the Proclamation.
Topics:
Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students
Date:
5/28/2025
U.S. Department of Labor Rescission of 2022 Cryptocurrency 401(k) Plan Guidance (May 28, 2025)
U.S. Department of Labor (the Department) announced its rescission of 2022 guidance that previously directed plan fiduciaries to exercise “extreme care” before including cryptocurrency options in 401(k) retirement plans. The announcement stated that the 2022 language “deviated from the requirements of the Employee Retirement Income Security Act” (ERISA) and “marked a departure from the department’s historically neutral, principled-based approach to fiduciary investment decisions.” It also framed the 2022 guidance as an “overreach” of federal power and stated that “investment decisions should be made by fiduciaries, not D.C. bureaucrats.” The announcement concluded by stating that the rescission reaffirms the Department’s “neutral stance, neither endorsing, nor disapproving of, plan fiduciaries” who wish to include cryptocurrency in a plan’s “investment menu.”
Topics:
Employee Benefits | Employee Retirement Income Security Act (ERISA) | Faculty & Staff
Date:
4/29/2025
AAUP Academic Freedom and Tenure: Muhlenberg College Report (Apr. 29, 2025)
The American Association of University Professors (AAUP) released a new report on the 2024 dismissal of Dr. Maura Finkelstein titled, “Academic Freedom and Tenure: Muhlenberg College.” The report concludes that the administration, in initially dismissing the professor, acted in violation of AAUP-supported principles and standards of academic freedom and due process. It further asserts that the administration’s actions in dismissing the professor, as well as monitoring her social media posts, “severely impaired the climate for academic freedom at Muhlenberg College.” Finally, the report alleges that the College’s equal opportunity and nondiscrimination policies did not sufficiently protect academic freedom and due process, and cautions that the professor’s experience is may not be unique, nor the last of its kind, and thus, makes several procedural recommendations and emphasizes the critical importance of sound policies and appropriate faculty oversight.
Topics:
Academic Freedom & Employee Speech | Faculty & Staff
Date:
4/17/2025
Cunningham v. Cornell University (Apr. 17, 2025)
Memorandum Opinion Reversing and Remanding. Plaintiffs, a class of current and former Cornell University employees who participated in the University’s retirement plans from 2010-2016, brought suit against the University and other plan fiduciaries alleging that defendants violated §1106(a)(1)(C) by causing the plans to engage in prohibited transactions for recordkeeping services. The Second Circuit found that “the language of §1106(a)(1) cannot be read to demand explicit allegation of ‘self-dealing or disloyal conduct.’” It held the exemptions to §1106(a)’s prohibited transactions contained in §1108 imposed additional pleading requirements, and the exemptions cannot be understood merely as affirmative defenses to the conduct proscribed in §1106(a). The Second Circuit split from the Eighth Circuit, which held that no additional pleading requirements beyond §1106(a)(1) apply to prohibited-transaction claims. Following the circuit split, the U.S. Supreme Court granted certiorari to decide whether a plaintiff can state a claim for relief by simply alleging that a plan fiduciary engaged in a transaction proscribed by §1106(a)(1)(C), or whether a plaintiff must plead allegations that disprove the applicability of the §1108(b)(2)(A) exemption. In reversing the Second Circuit holding, the unanimous Court concluded that plaintiffs need do no more than plead a violation of §1106(a)(1)(C). The Court found that the relevant part of Section 1106 includes three elements: (1) causing the plan to engage in a transaction; (2) that “constitutes…furnishings of…services”; (3) “between the plan and a party in interest.” The Court further reasoned that the proper method of proceeding is for the plaintiff to point to the transaction with the service provider, and for the service provider to point out any particular exemption that might protect it; if a §1108 exemption applies, the §1106(a)(1)(C) claim will ultimately fail.
Topics:
Employee Benefits | Employee Retirement Income Security Act (ERISA) | Faculty & Staff
Date:
4/17/2025
U.S. Department of Education Issues Records Request to Harvard University (Apr. 17, 2025)
The U.S. Department of Education (the Department) sent a records request to Harvard University following a review of the University’s foreign reports, that revealed allegedly incomplete and inaccurate disclosures. To verify compliance, the University must produce within thirty calendar days: (1) a complete and accurate copy of its procedures to achieve compliance with Section 117; (2) a list of all foreign gifts, grants, and contracts from or with foreign sources; (3) the identities of all known parties involved in each of the University’s foreign source gifts; (4) all records regarding or referencing gifts or contracts between the University and foreign governments, without limitation; (5) all records relating to expelled foreign students or foreign students who have had their University credentials canceled from January 1, 2016, through the present; (6) a list of any electronic mail usernames known by Harvard or its personnel to have been utilized by such foreign students; (7) a list of all University personnel with responsibilities relating to the facilitation of the expulsion of foreign students or foreign students who have had their University credentials canceled from January 1, 2016, through the present; (8) a list identifying all full or partial funding sources and amounts for any research conducted by foreign expelled students; and (9) a list of all visiting or temporary researchers, scholars, students, and faculty at the University who are from or affiliated with foreign governments.
Topics:
Contracts | Employment of Foreign Nationals | Endowments & Gifts | Faculty & Staff | Grants, Contracts, & Sponsored Research | Immigration | International Students | International Ventures | Research | Taxes & Finances
Date:
4/17/2025
ACLU Open Letter to College and University General Counsels (Apr. 17, 2025)
The American Civil Liberties Union Foundation (ACLU) published an open letter (the Letter) to college and university general counsels on (1) 8 U.S.C. §1324 Harboring Liability, and (2) ICE Administrative Subpoenas. The Letter states that under case law, a college or university’s normal conduct in providing housing and services to students does not constitute a violation of Section 1324, and that there are no consequences for an initial failure of an institution to respond to an administrative subpoena from Immigration and Customs Enforcement (ICE); further noting that any gag order in these subpoenas has no legal effect. The Letter additionally provides a legal analysis of limitations on liability for harboring under Section 1324 and the rights and options of an entity upon receipt of an ICE administrative subpoena.
Topics:
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students
Date:
4/9/2025
Department of Homeland Security to Begin Screening Noncitizen Social Media Activity for Antisemitism (Apr. 9, 2025)
The U.S. Department of Homeland Security announced that the U.S. Citizenship and Immigration Services (USCIS) will begin considering alleged antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying noncitizen immigration benefit requests. It stated that the review of social media activity is immediate and will impact noncitizens applying for lawful permanent resident status, as well as foreign students and noncitizens affiliated with educational institutions linked to allegedly antisemitic activity. Under this guidance, USCIS will consider social media content that indicates a noncitizen endorsing, espousing, promoting, or supporting antisemitic (1) terrorism, (2) terrorist organizations, or other (3) activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefit requests.
Topics:
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students
Date:
4/9/2025
Bedi v. The United States House of Representatives Committee on Education and Workforce (N.D. Ill. E.D. Apr. 9, 2025)
Complaint for Injunctive and Declaratory Relief. Plaintiffs, Shelia Bedi and Lyn Cohn, two faculty members at Northwestern University’s Pritzker School of Law (Pritzker), allege that defendants, the United States House of Representatives Committee on Education and Workforce (the Committee), Tim Walberg, Burgess Owens, Northwestern University, Michael Schill, and Peter Barris acted beyond their lawful authority and violated plaintiffs’ rights protected by the First, Fifth, and Sixth Amendments to the U.S. Constitution. Plaintiffs sue following defendants’ demand that Pritzker and its Bluhm Legal Clinic produce information about how they teach their students, represent their clients, and fund their work following allegations that some of plaintiffs’ clients have engaged in “Antisemitic conduct.” Plaintiffs allege that this effort is part of the federal government’s ongoing attack on academic freedom, legal professionals, and the rule of law. Plaintiffs further allege that defendants’ demands exceed their authority and have no valid legislative purpose, and they are an attempt to investigate, intimidate, and punish institutions and individuals that defendants have deemed “left-wing.” Plaintiffs specifically allege that defendants have violated their Rights to Free Speech, Freedom of Association, to Petition for Redress of Grievances, Academic Freedom, Fifth Amendment Due Process and Equal Protection, Sixth Amendment Right to Counsel, and have retaliated against plaintiffs. Plaintiffs ask that the court immediately and preliminarily enjoin defendants from producing and obtaining any documents demanded in the Committee’s demand letter, declare that the demands are unconstitutional and violate the First, Fifth, and Sixth Amendments to the U.S. Constitution.
Topics:
Academic Freedom & Employee Speech | Constitutional Issues | Discrimination, Accommodation, & Diversity | Faculty & Staff | First Amendment & Free Speech | Race and National Origin Discrimination
Date:
4/4/2025
ACE Letter Seeking Clarity on International Students and Scholars (Apr. 4, 2025)
The American Council on Education (ACE) sent a letter (the Letter) to Secretary Marco Rubio of the U.S. Department of State and Secretary Kristi Noem of the U.S. Department of Homeland Security seeking information about the State Department (State) and Department of Homeland Security (DHS) policy and planned actions relative to international students and scholars. The Letter is written in light of reports that student visas are being revoked, and records are being terminated in the Student Exchange Visitor Information System without additional information being shared with the institutions those students attend. The Letter states that over 1 million international students attend U.S. colleges and universities annually, and while those who signed the Letter support the need for the federal government to safeguard national security, institutions cannot fully support that mission unless there is a briefing to better understand the actions occurring, including the recent communication to U.S. consulates requiring enhanced social media vetting for all F, M, and J visa applicants.
Topics:
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students
Date:
4/2/2025
AAUP Letter on Complying with Personally Identifiable Information (Apr. 2, 2025)
The American Association of University Professors (AAUP) sent a letter (the Letter) to postsecondary general counsels clarifying that they are under no legal compulsion to comply with requests for names and nationalities of students and faculty who may have been involved in alleged Title VI violations, and further, urged them not to comply. The Letter states that Title VI does not require higher education institutions to provide the personally identifiable information of individual students or faculty members so that the federal executive administration can carry out further deportations and asserts that sharing such information may violate the First Amendment rights of students and faculty.
Topics:
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff | Immigration | International Students

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