Cases & Developments - National Association of College and University Attorneys

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Latest Cases & Developments

Date:
2/27/2026
Pentagon Memorandum Eliminating Senior Service College Fellows Program at 13 Institutions (Feb. 27, 2026)
The Department of Defense sent a memorandum to senior Pentagon leadership sharing that it plans to eliminate the senior service college fellows programs at 13 institutions as well as 9 other organizations for the 2026-27 academic year. The memorandum identified 21 new partner institutions that could replace the fellowships, stating that these institutions meet the Department’s criteria for “intellectual freedom, minimal relationships with adversaries” and “minimal public expression in opposition to the Department.”
Topics:
Governance | Government Relations & Community Affairs
Date:
1/26/2026
Trs. of the Cal. State Univ. v. Pub. Emp’t Relations Bd. (Cal. App. Jan. 26, 2026)
Opinion Affirming in Part and Vacating in Part. The California Faculty Association (CFA), the bargaining unit representing faculty at California State University, filed an unfair labor practice charge with the California Public Employment Relations Board (PERB) following the university’s decision to change the student vaccination policy. PERB concluded that (1) the policy had reasonably foreseeable effects on faculty health and safety that triggered a duty to bargain and (2) the university’s failure to bargain violated the California Higher Education Employer-Employee Relations Act (HEERA). On appeal, the court agreed with PERB’s conclusion that the university had a duty to bargain, noting that the existence of accommodation processes for immuno-compromised faculty did not eliminate this duty. However, the court rejected PERB’s conclusion that the university violated HEERA, finding no substantial evidence that the university had implemented the policy prior to CFA filing its charge with PERB. The court reasoned that “implementation” requires concrete steps to carry out a decision, and mere adoption of a policy was insufficient.
Topics:
Collective Bargaining | Faculty & Staff | Governance | Shared Governance
Date:
1/20/2026
ACE 2026 Winter Term Pulse Point Survey (Jan. 20, 2026)
The American Council on Education (ACE) published the results of its 2026 Winter Term Pulse Point Survey, which collected responses from 386 senior leaders nationwide on the most pressing issues facing higher education. The survey found that seven in ten higher education leaders are concerned about government interference in academic freedom and institutional autonomy, and nearly all reported concerns that the current federal policy environment has introduced uncertainty into institutional planning. Respondents reported Workforce Pell, short-term workforce training, and workforce development more broadly as one of the top legislative wins within the past year.
Topics:
Accreditation, Authorizations, & Higher Education Act | Governance | Governing Boards & Administrators | Government Relations & Community Affairs | Higher Education Act (HEA)
Date:
12/10/2025
Jackson v. Duff (5th Cir. Dec. 10, 2025)
Opinion Affirming Denial of Defendants’ Motion to Dismiss. Plaintiff, the vice president of Jackson State University, sued members of the Mississippi Board of Trustees of State Institutions of Higher Learning in their individual capacities, alleging violations of the Fourteenth Amendment’s Equal Protection Clause under § 1983 and sex discrimination and retaliation under Title VII after the board failed to hire her for an interim president role, and subsequently denied her an interview and failed to hire her for the presidency. The district court denied the individual defendants’ motion to dismiss plaintiff’s § 1983 claims based on qualified immunity. On appeal, the Fifth Circuit affirmed the district court’s ruling, finding (1) that each board member, by way of voting to appoint a male candidate and denying plaintiff an interview, could be construed as the proximate cause of plaintiff’s alleged constitutional injury, and (2) because the plaintiff had adequately pled a violation of clearly established law,” a qualified immunity defense was foreclosed at this stage of the proceeding.
Topics:
Discrimination, Accommodation, & Diversity | Governance | Governing Boards & Administrators | Retaliation | Sex Discrimination
Date:
11/18/2025
ACE Conference Recommendations on the NDAA (Nov. 18, 2025)
The American Council on Education (ACE) along with 21 higher education associations sent comments to the House of Representatives on provisions being considered in the 2026 National Defense Authorization Act (NDAA). The comments encourage conferees to keep two provisions that align with the research-security systems campuses already use and extend current limits on collaborations with foreign institutions of concern. The comments also urge caution around proposals that are likely to surface in final negotiations such as the SAFE Research Act, new contract prohibitions, and a House provisions that would complicate institutions’ Title VI obligations by overlapping rules for federal funding and responding to antisemitic demonstrations.
Topics:
Governance | Government Relations & Community Affairs
Date:
11/12/2025
ACE Higher Education Executive Order Tracker (Nov. 12, 2025)
The American Council on Education (ACE) has created a higher education executive order tracker which provides a high level overview of each order (blocked, blocked in part, or in effect) and details the higher education areas that are impacted (civil/human rights & DEI; foreign/ global affairs; government & education; financial; and health & science). The tool also allows users to search for executive orders by keyword and filter by impact area.
Topics:
Governance | Government Relations & Community Affairs
Date:
10/20/2025
Dep’t of Educ. v. Massey (Pa. Commw. Ct. Oct. 20, 2025)
Opinion Affirming Office of Open Records Final Determinations. Petitioners, the Department of Education and Pennsylvania State University, in a set of consolidated cases, appealed the Pennsylvania Office of Open Records’s (OOR) final determinations granting a journalist from Spotlight PA access to several records regarding the Board of Trustees. OOR partially granted respondent’s Right-to-Know Law (RTKL) request in which he sought copies of electronic documents that were created by the university and sent via an electronic system to the Departments of Education and Agriculture. The court upheld OOR’s determination, reasoning that the records requested are public records under RTKL that were received by the Departments and were therefore within the “possession, custody, or control of the Departments”, and that they are not “confidential proprietary information” as argued by petitioners.
Topics:
Electronic Discovery & Electronically Stored Information | Governance | Governing Boards & Administrators | Litigation, Mediation & Arbitration | Technology
Date:
7/10/2025
Department of labor New Interpretation on Personal and Work Opportunity Reconciliation Act of 1996 (Jul. 10, 2025)
The U.S. Department of Labor (DOL) announced that its new interpretation of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), reasoning that it improperly extended certain federal public benefits to illegal aliens. Under the new guidance, all grantees funded through the Workforce Innovation and Opportunity Act (WIOA) and related programs must verify valid work authorization before providing participant-level services. The guidance applies to programs including WIOA Title I Adult, Dislocated Worker, Youth programs (including statewide employment and training services funded by the Governor reserve), WIOA National Dislocated Worker Grants, Wagner-Peyser Act Employment Service, Reentry Employment Opportunities and other programs authorized under Section 169 of WIOA, YouthBuild, the National Farmworker Jobs Program, and the Senior Community Service Employment Program. Additionally, The DOL has rescinded Training and Employment Guidance Letter No. 10-23, and replacement guidance has been provided to aid in the work authorization verification for grant programs administered by the Employment and Training Administration (ETA) and applies to: State Workforce Agencies, State Workforce Administrators, State Workforce Liaisons, State and Local Workforce Board Chairs and Directors, American Job Center Director, State Labor Commissioners, WIO Section 167 Migrant and Seasonal Farmworker Program Grantees, WIOA Section 169 Reentry Employment Opportunities Grantees and Other Demonstration Programs, WIOA Section 171 Youthbuild Grantees, WIOA National Dislocated Worker Grant Program Grantees, and Senior Community Service Employment Program Grantees. This policy change is intended to align with Executive Order (E.O.) 14218 “Ending Taxpayer Subsidization of Open Borders” and is in alignment with the Department of Education’s new interpretive rule rescinding the previous 1997 Dear Colleague Letter on PRWORA.
Topics:
Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) | Employment of Foreign Nationals | Faculty & Staff | Governance | Government Relations & Community Affairs | Immigration | International Students
Date:
6/27/2025
OFCCP Letter on Federal Contractor Executive Order Compliance (Jun. 27, 2025)
U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) issued a letter to federal contractors seeking voluntary disclosures on Executive Order (EO) compliance. The letter states that pursuant to Executive Order14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” OFCCP “is no longer allowing federal contractors to engage in workforce balancing based on protected characteristics or requiring federal contractors and subcontractors to take ‘affirmative action.’” The letter requests that contractors “examine their previous affirmative action plans or efforts . . .[and] provide information demonstrating that they have discontinued these practices.” The letter provides examples of practices that contractors may consider in their voluntary submission, such as mandatory trainings, development programs, placement goals, ratings by diversity organizations, and mandated courses or programs with a focus on racial stereotypes. Instructions for submitting a voluntary disclosure are available through OFCCP’s Contractor Portal, and federal contractors have 90 days from the date of the letter to voluntarily disclose their compliance efforts.
Topics:
Contracts | Contracts Administration | Governance | Government Relations & Community Affairs
Date:
6/16/2025
ACE letter on Department of Energy Direct Final Rules (Jun. 16, 2024)
The American Council on Education (ACE) sent a letter to the U.S. Department of Energy (the Department) commenting on the adverse impact of the five Direct Final Rules (DFRs) that were used May 15, 2025. The letter discusses how the DFRs would negatively impact students, staff, and faculty, in addition to amending civil rights regulations, and adding unduly burdensome administrative costs. The letter further points out how irregular it is for the Department to attempt to make major changes through DFR process, which is “specifically designed for uncontroversial or insignificant changes,” noting that these proposed changes far exceed that specified standard. The letter concludes by requesting that the Department withdraw the rules and allow further action to be pursued through appropriate administrative processes and allow for public notice and comment.
Topics:
Governance | Government Relations & Community Affairs

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