Cases & Developments - National Association of College and University Attorneys

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Date:
1/31/2025
Administrative Stay: National Council of Nonprofits v. Office of Management and Budget (D.D.C. Jan. 28, 2025)
Order of Administrative Stay. Plaintiffs, several coalitions of nonprofit organizations, allege the Office of Management and Budget’s (OMB) Memorandum M-25-13, issued January 27, 2025, violates the Administrative Procedure Act, as well as the First Amendment and exceeds OMB’s statutory authority. Plaintiffs seek a temporary restraining order (TRO) “barring the OMB and all of its officers, employees, and agents from taking any steps to implement, apply, or enforce Memo-25-13.” Memorandum M-25-13 directed federal agencies to “complete a comprehensive analysis of all of their federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders” and additionally required agencies to “temporarily pause all activities related to [the] obligation or disbursement of all federal financial assistance, and other relevant agency act[ivities] that may be implicated by the executive orders, including, but not limited to, financial assistance for foreign aid, nongovernmental organizations, DEI, woke gender ideology, and the green new deal.” The Court held an emergency hearing, and to maintain the status quo until the Court may rule on plaintiffs’ motion for TRO, the court ordered an administrative stay on the case until 5 p.m. on February 3, 2025. Note: M-25-13 was rescinded January 29, 2025.
Topics:
Contracts | Governance | Grants, Contracts, & Sponsored Research
Date:
1/31/2025
New York v. Office of Management and Budget (D.R.I. January 31, 2025)
Order granting Plaintiffs’ request for a Temporary Restraining Order (TRO). Plaintiffs, State of New York, California, Illinois, Rhode Island, New Jersey, Massachusetts, Arizona, Colorado, Connecticut, Delaware, District of Columbia, Hawai’i, Maine, Maryland, Michigan, Minnesota, Nevada, North Carolina, New Mexico, Oregon, Vermont, Washington, and Wisconsin allege the Office of Management and Budget’s (OMB) Memorandum M-25-13 violates the Administrative Procedure Act (APA) as Congress has not delegated any unilateral authority to the Executive to indefinitely pause all federal financial assistance without considering the statutory and contractual terms governing the grants. Plaintiffs contend OMB’s actions violate separation of powers because the Executive has overridden Congress’ judgments by refusing to disburse already-allocated funding for many federal grant programs. Plaintiffs further allege the Memorandum violates the Spending Clause, presentment appropriations, and taking care clauses, and if allowed to proceed, the Memorandum would cause irreparable harm to highway planning and construction, childcare, veteran nursing care funding, special education grants, state health departments, and current disaster relief efforts. Ruling in favor of plaintiffs, the Court wrote “by trying to impose certain conditions on this funding, the Executive has acted contrary to the law and in violation of the APA.” The Court reasoned “Congress has not given the Executive limitless power to broadly and indefinitely pause all funds that it has expressly directed to specific recipients and purposes and therefore the Executive’s actions violate the separation of powers.” While OMB rescinded the Memorandum, the Court noted that the TRO is still a necessity as the White House Press Secretary wrote on X “the President’s [Executive Orders]’s on federal funding remain in full force and effect and will be rigorously implemented.” The Court stated that “based on the Press Secretary’s unequivocal statement and the continued actions of executive agencies, the Court will find that the policies in the OMB Directive that the States challenge here are still in full force and effect and thus the issue presented in the States’ TRO motion are not moot.” In granting the TRO the Court ordered defendants to not pause, freeze, impede, block, cancel, or terminate compliance with awards and obligations to provide federal financial assistance to the States and that defendants must not impede the States’ access to such awards and obligations, except on the basis of the applicable authorizing statutes, regulations, and terms.
Topics:
Contracts | Governance | Government Relations & Community Affairs | Grants, Contracts, & Sponsored Research
Date:
1/31/2025
Ending Illegal Discrimination And Restoring Merit-Based Opportunity – The White House (Jan. 21, 2025)
Executive Order: Ending Illegal Discrimination and Restoring Merit-Based Opportunity. This Executive Order requires all executive departments and agencies to terminate all “discriminatory and illegal” preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, and requirements, conclusively ceasing all programs that promote “diversity.” The Order revokes several prior Executive Orders charged with promoting diversity, notably, revoking prior Orders implementing the Equal Employment Opportunity Act of 1965. Federal contracts and grants are required to now include (1) a term requiring the contractual counterparty or grant recipient to agree that its compliance in all respects with all applicable Federal anti-discrimination laws is material to the government’s payment decisions for purposes of section 3729(b)(4) of title 31, United States Code; and (2) a term requiring such counterparty or recipient to certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws. The Order charges the Attorney General to submit a report within 120 days of the Order proposing a strategic enforcement plan that identifies key sectors of concern and current DEI practices. Additionally, each agency is charged with identifying up to nine potential civil compliance investigations of publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over 1 billion dollars. Finally, the Order requires that within 120 days the Attorney General and the Secretary of Education will jointly issue guidance to all State and local educational agencies that receive Federal funds, as well as all institutions of higher education that receive Federal grants or participate in the Federal student loan assistance program under Title IV of the Higher Education Act, regarding the measures and practices required to comply with Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023). On January 22, the White House also published a Fact Sheet to aid in the implementation of the Order.
Topics:
Diversity in Employment | Faculty & Staff | Governance | Government Relations & Community Affairs
Date:
1/3/2025
Labrador v. Bd. of Educ. (Idaho Dec. 5, 2024)
Order vacating and remanding the District Court’s grant of partial summary judgment and dismissal. Plaintiff, the Attorney General for the State of Idaho brought claims against the Idaho Board of Education (the Board) alleging violation of the State’s Open Meetings Law (OML) following a series of meetings and communication regarding the approved proposal for the University of Idaho to purchase the University of Phoenix. The acquisition, which proponents referred to during negotiations as “Project Neptune” was approved by the Board during a public meeting in May of 2023, prior to which it held three executive sessions – in March, April, and May – that were closed to the public. The dispute centered primarily upon whether during the trio of executive sessions the Board was engaged in “preliminary negotiations” regarding the purchase and “in competition with the governing bod[y]” of another state, which is a recognized exception to the requirement that government conduct business in public under Idaho law. In addition, the plaintiff sought but was denied leave to amend the original complaint to challenge the adequacy of the notice given prior to the public meeting during which Project Neptune was approved. After a bench trial found no violation of OML, plaintiff appealed and argued the court incorrectly defined and applied legal standards in its rulings on discovery and summary judgment, and that in denying plaintiff’s motion to amend, it incorrectly found that his claim pertaining to the public meeting notice did not relate back to the original claims regarding the trio of executive sessions. The Supreme Court of Idaho reasoned that based upon “public policy objectives plainly expressed within [OML] coupled with the applicable canons of statutory construction” the trial court erred in its deference to Defendants’ subjective belief regarding potential competition with other states and applied an overly “expansive interpretation” of the phrase “preliminary negotiations” which “does not mean ‘all negotiations’ … [but] a phase of negotiations preliminary to final negotiations.” And although Supreme Court of Idaho agreed with the lower court’s conclusion that plaintiff’s challenge to the Board’s failure to file an adequate notice regarding the May 2023 public meeting was untimely, it found that plaintiff’s expanded challenge to the April executive session arose directedly from the original claims, and thus, related back. Accordingly, it vacated the trial court decision and remanded the case for further discovery prior to disposition on motion or at a trial on the merits.
Topics:
Financial Exigency & Institutional Merger & Closure | Governance
Date:
11/1/2024
Congressional Committee Report on Antisemitism on College Campuses (Oct. 31, 2024)
The U.S. House of Representatives Committee on Education and the Workforce (Committee) published a Republican Staff Report titled, “Antisemitism on College Campuses Exposed.” The Report summarizes the Committee’s yearlong investigation into allegations of antisemitism at several postsecondary institutions and sets forth its four key findings, which the Committee wrote “demonstrate an environment hostile to Jewish students likely in violation of Title VI” but also noted were “not conclusive judgments on violations.” The Report includes a 200+ page appendix of selected materials acquired by the Committee through subpoena, forewarns of future expanded investigation, and calls for a “fundamental reassessment” of federal support for postsecondary institutions “that have failed to meet their obligations to protect Jewish students, faculty, and staff, and to maintain a safe and uninterrupted learning environment for all students.”
Topics:
Discrimination, Accommodation, & Diversity | Governance | Government Relations & Community Affairs | Race and National Origin Discrimination | Religious Discrimination & Accommodation | Student Speech & Campus Unrest | Students
Date:
10/11/2024
Fenchak v. The Penn. State Univ. Board of Trustees (Ct. Com. Pl. Centre Cnty. Ct. Oct. 9, 2024)
Opinion and Order granting Plaintiff’s Emergency Motion for Preliminary Injunction. Plaintiff, a current alumni-elected member of The Pennsylvania State University Board of Trustees, filed suit seeking to compel the University to disclose certain investment and financial documents, as well as a copy of an athletic events vendor contract that he alleges are needed to fulfill his fiduciary duty as a member of the Board. Three days after filing suit, plaintiff attended a Board meeting wherein he was gifted a hat, which he told a trio of University employees made him resemble a “penis with a hat on.” Thereafter, the University launched an investigation that led to a recommendation to remove plaintiff from the Board for violating the Trustee Code of Conduct. Plaintiff then sought a preliminary injunction from the court to prohibit the Board from voting on the removal recommendation, which he claims is in retaliation for his filing suit rather than animated by his comments to University staff. The court ruled an injunction was necessary to prevent plaintiff’s removal from the Board, which would inhibit his ability to prosecute the underlying documents case. It reasoned that although it “does not condone” plaintiff’s behavior towards University personnel, the “offending remark was an approximate quote” from the 1992 movie, “A League of their Own.” Litigation on the merits proceeds.
Topics:
Governance | Governing Boards & Administrators
Date:
4/5/2024
Swender v. Garden City Cmty. Coll. (D. Kan. Mar. 29, 2024)
Memorandum and Order granting-in-part and denying-in-part Defendants’ Motions to Dismiss. Plaintiff, a former president of Garden City Community College, brought contract and tort claims against the College and its outside counsel after a controversy involving a student protest at a Board of Trustees’ meeting led to the end of plaintiff’s formal employment relationship with the College. Following the Board meeting, on the advice of the College and outside counsel, plaintiff issued the students a No Trespass Order that was lifted when the students sued. After plaintiff and the College entered into a Separation Agreement, the College categorized him as an independent consultant in order to satisfy the “Continued Employment” clause of his original Employment Contract, which provided that he should still receive his full salary and benefits for the full term of his contract even if he ceased to be president. As an independent consultant, however, he was no longer eligible for certain retirement benefits. In permitting plaintiff’s contract claim to proceed against the College, the court found he had sufficiently alleged that the Separation Agreement incorporated the terms of the Employment Contract by reference, including its “Continued Employment” clause. It rejected the College’s Release Clause affirmative defense, finding that the clause released the College from claims arising from actions taken up to the time of the Settlement Agreement and that the alleged miscategorization occurred afterwards. The court found plaintiff’s malpractice claims against the College and its outside counsel related to their advice to issue the No Trespass Order were time-barred.
Topics:
Contracts | Employment Separation, RIFs, ERIPs & Retrenchment | Faculty & Staff | Governance | Governing Boards & Administrators
Date:
1/5/2024
Perkins v. New Eng. Coll. (D. Vt. Jan. 3, 2024)
Opinion and Order granting Defendants’ Motion to Stay. Plaintiff, a former Chancellor of New England College who was also a member of its Board of Trustees, brought sex discrimination and intentional infliction of emotional distress claims against the College and its President after it terminated her employment the day after her Employment Agreement expired and removed her from its Board prior the end of her three-year term. Defendants moved to stay and to compel arbitration pursuant to the Employment Agreement. In granting the stay and compelling arbitration on plaintiff’s discrimination and IIED claims, the court held that even though her termination took place after the Employment Agreement’s expiration, the facts giving rise to her claims occurred within its duration. Turning to her claims related to her removal from the Board, the court held that although her Board appointment was not governed by the Employment Agreement “the interests of economy for both the Court and the parties will be served by a complete stay.”
Topics:
Discrimination, Accommodation, & Diversity | Governance | Governing Boards & Administrators | Litigation, Mediation & Arbitration | Sex Discrimination | Sex Discrimination in Employment
Date:
11/24/2023
Savannah State Univ. Found. v. Lewis (Ga. App. Nov. 17, 2023)
Opinion reversing denial of Defendants’ Motion for Summary Judgment. Defendants are the Savannah State University Foundation, Inc. and the Savannah State University Foundation Real Estate Ventures, LLC, of which the Foundation is the sole member. The LLC leases the “University Village,” an apartment facility built on land leased to it by the Board of Regents of the University System of Georgia, to Savannah State University (SSU) for use as student housing. Plaintiff brought premises liability, nuisance, and related claims against the Foundation and the LLC after her son was shot and killed while visiting friends at the University Village. Defendants moved for summary judgment, asserting that neither was in control or possession of the property at the time. The trial court denied the motion, but the Court of Appeals of Georgia reversed, holding that neither restrictions in the lease on how SSU may use the property nor rights to enter and inspect the property, which were reserved to protect the LLC’s ownership interests rather than any possessory interests, were sufficient to raise issues of material fact regarding whether the LLC retained possession or control of the property.
Topics:
Foundations & Affiliated Entities | Governance | Litigation, Mediation & Arbitration | Tort Litigation
Date:
9/22/2023
Fla. Atl. Univ. Bd. of Trs. v. Harbor Branch Oceanographic Inst. Found. (Fla. App. Sep. 20, 2023)
Opinion affirming the judgment of the trial court. In 2007, Florida Atlantic University and the Harbor Branch Oceanographic Institute Foundation, Inc. signed a Memorandum of Understanding (MOU) providing that the Foundation would become a direct-support organization (DSO) of FAU. The MOU provided that FAU would appoint two members of the Foundation’s Board of Directors and that the Board would retain discretion over distribution of funds from the Foundation. The Florida Board of Governors subsequently changed its regulations on approval of DSO budgets, and the Florida Legislature amended the statute on DSOs and DSO board appointments. In affirming the judgment of the trial court, the Florida Court of Appeals held that the amended DSO statute unconstitutionally impaired the MOU and that FAU had not sufficiently asserted a public policy interest in DSO oversight that was not already addressed by the two Board appointments provided for in the MOU. It also affirmed the trial court’s holding that the MOU was silent as to budgetary approval and that the amended regulation would not impair the Board’s discretion on distribution of Foundation funds.
Topics:
Foundations & Affiliated Entities | Governance

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