Cases & Developments - National Association of College and University Attorneys

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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:
4/17/2025
Deore v. U.S. Department of Homeland Security (E.D. Mich. S.D. Apr. 17, 2025)
Order Denying in part Motion for Temporary Restraining Order and Preliminary Injunction. Plaintiffs, including several international students studying at the University of Michigan and Wayne State University allege that defendants, the U.S. Department of Homeland Security and other government officials, violated the Due Process Clause of the Constitution and the Administrative Procedure Act (APA) following the termination of plaintiffs’ records in the Student and Exchange Visitor Information System (SEVIS) and sought a temporary restraining order. Defendants maintain that plaintiffs’ termination status was based on their criminal or immigration histories as some plaintiffs were previously arrested for “assault excluding sexual” and “assault – 4th Degree.” Defendants contend that SEVIS terminations do not automatically revoke F-1 student status and defendants have no reason to believe that the students had lost F-1 status or were in danger of facing removal proceedings following their SEVIS terminations. Defendants further asserted that “prudential visa revocation—on its own—does not automatically revoke F-1 status.” In denying plaintiffs’ motion for a temporary restraining order, the Court found that it could not conclude whether the termination of a record within the SEVIS database is synonymous with a termination of F-1 status due to the limited record. The Court also found that due to insufficient information from the parties, it was unable to ascertain whether the termination of a SEVIS record—absent a termination of F-1 status, insofar as that is possible––carries legal consequences and is thus a reviewable final agency action under the APA. Further, because plaintiffs can continue taking classes and defendants represented that they had no reason to believe plaintiffs are removable, the Court did not find any immediate and irreparable harm threatening plaintiffs or the public interest sufficient to grant a temporary restraining order. The Court scheduled a hearing for a preliminary injunction for May 19, 2025.
Topics:
Immigration | International Students
Date:
4/16/2025
Association of American Universities v. Department of Energy (D. Mass. Apr. 16, 2025)
Order Granting Plaintiffs’ Motion for a Temporary Restraining Order. Plaintiffs, the Association of American Universities, American Council on Education, Association of Public and Land-Grant Universities, Brown University, California Institute of Technology, Cornell University, Board of Trustees of the University of Illinois, Massachusetts Institute of Technology, Regents of the University of Michigan, Board of Trustees of Michigan State University, Trustees of Princeton University, and University of Rochester challenged the Department of Energy (DOE) and its Secretary Chris Wright for the Department’s cut on indirect cost rates for government-funded research. Plaintiffs sought a Temporary Restraining Order (TRO) to prevent immediate and irreparable injury following defendants’ announcement that the DOE will no longer use negotiated indirect cost rates and will instead default to a 15% indirect cost rate for all grant awards to postsecondary institutions. Plaintiffs alleged that the DOE policy violates the Administrative Procedure Act (APA) by way of deviating from the Congressionally approved negotiated cost rates, terminates existing grants, defies cost recovery regulations, and violates authorizing statutes. The Court found that plaintiffs made a sufficient showing that absent issuance of a TRO, they would sustain immediate and irreparable injury. It enjoined defendants and their officers, employees, servants, agents, appointees, and successors from implementing, instituting, maintaining, or giving effect to the DOE Policy Flash: Adjusting Department of Energy Grant Policy for Institutions of Higher Education (the “Rate Cap Policy”) in any form; from otherwise modifying negotiated indirect cost rates except as permitted by statute and by the regulations of the Office of Management and Budget; and from terminating any grants pursuant to the Rate Cap Policy or based on a grantee’s refusal to accept an indirect cost rate less than their negotiated rate. The Court also ordered defendants to provide written notice of the Order to all funding recipients affected by the Rate Cap Policy and to file a biweekly status report to confirm regular disbursement and obligation of federal financial assistance funds until the TRO expires. A hearing is set for April 28, 2025.
Topics:
Contracts | Grants, Contracts, & Sponsored Research | Research
Date:
4/14/2025
2024-25 and 2025-26 FAFSA Updates (Apr. 14, 2025)
U.S. Department of Education Office of Federal Student Aid (the Department) announced updates to the 2024-25 and 2025-26 Free Application for Federal Student Aid (FAFSA) form, including guidance for institutions with students who have a pseudo-social security number (SSN), updates about new FAFSA Submission Summary request functionality in FAFSA Partner Portal (FPPP) for paper filers, and the Institutional Student Information Record (ISIR) request functionality.
Topics:
Financial Aid, Scholarships, & Student Loans | Students
Date:
4/14/2025
American Educational Research Association v. U.S. Department of Education (D. Md. S.D. Apr. 14, 2025)
Complaint for Declaratory and Injunctive Relief. Plaintiffs, the American Educational Research Association and the Society for Research on Educational Effectiveness allege that defendants, the U.S. Department of Education (the Department), the Institute of Education Sciences (IES), Linda McMahon, and Matthew Soldner exceeded their scope of power when announcing that there would be a mass reduction in force (RIF) at the Department resulting in about 90% of IES personnel being placed on leave. Plaintiffs allege that the Education Science Reform Act of 2002 mandated the establishment of the IES within the Department, and Congress had already appropriated funding to IES for “Special Education Studies and Evaluations,” as well as “Research, Development, and Dissemination.” Plaintiffs allege that defendants violated the Administrative Procedure Act (APA) by way of being arbitrary and capricious, preventing IES and the National Center for Education Statistics (NCES) from carrying out their core functions and disregarding ongoing work and reliance interests. Plaintiffs further allege that defendants’ actions are not in accordance with several laws in violation of 5 U.S.C. §70(2)(A), including the Education Science Reform Act (ESRA), the National Assessment of Educational Progress Authorization Act (NAEPA), the Individuals with Disabilities Education Act (IDEA), the Higher Education Opportunity Act of 2008 (HEOA), Further Consolidated Appropriations Act, 2024, and Full-Year Continuing Appropriations and Extensions Act, 2025, arguing that the mass terminations are contrary to law, legislative and executive separation of powers, in excess of the Department’s statutory authority, and ultra vires. Plaintiffs ask the court to (1) declare that the IES staff termination action and subsequent notices of termination are arbitrary, capricious, and not in accordance with law in violation of the APA and violate statutory and constitutional requirements; (2) order defendants to take expeditious steps, no longer than 30 days following the Court’s order, to reinstate the cancelled contracts or, where another contractor could provide equivalent services, to promptly re-bid the contracts, soliciting new contracts to carry out the research and data activities covered by the cancelled contracts; (3) order defendants to take immediate action to prevent the destruction of data in possession of contractors whose contracts were cancelled in the IES research termination action where the data could be subject to deletion requirements or otherwise is at risk of deletion; (4) vacate the IES staff termination action; and (5) order defendants to place individuals designated for termination through the IES staff termination action back in their roles necessary to carry out IES functions.
Topics:
Accreditation, Authorizations, & Higher Education Act | Contracts | Grants, Contracts, & Sponsored Research | Higher Education Act (HEA)
Date:
4/11/2025
U.S Department of Education Announces Consequences for Maine’s Title Further Enforcement Action (Apr. 11, 2025)
U.S. Department of Education (the Department) announced that it is referring its Title IX investigation into the Maine Department of Education (MDOE) to the U.S. Department of Justice (DOJ) for further enforcement action. The Department announced that it will also initiate administrative proceedings to adjudicate termination of MDOE’s federal K-12 education funding, including formula and discretionary grants that it states is due to MDOE’s “continued refusal to comply with Title IX,” and which follows the Department’s noncompliance finding and issuance of a final warning letter.
Topics:
Students | Title IX & Student Sexual Misconduct
Date:
4/11/2025
U.S. Justice Department Ends Illinois DEI Scholarship Program (Apr. 11, 2025)
The U.S. Department of Justice (the Department) announced that it threatened to file suit against the State of Illinois and six universities after learning that an Illinois scholarship program allegedly unconstitutionally discriminated on the basis of race in violation of the Fourteenth Amendment. The scholarship program established by Illinois law purportedly used race as a prerequisite for participation, excluding students of some races but not others inconsistent with the Department’s interpretation of federal law and Students for Fair Admissions Inc. v. President & Fellow of Harvard Coll. (2023). Following notice from the Department, multiple universities ended their participation in the program, including Northwestern University, Loyola University of Chicago, and the University of Chicago. The Department noted that none of the institutions that the Department notified of its findings elected to continue participation in the program, and the Illinois Board of Higher Education notified the Department that it has suspended all activities related to the program.
Topics:
Discrimination, Accommodation, & Diversity | Financial Aid, Scholarships, & Student Loans | Race and National Origin Discrimination | Students
Date:
4/11/2025
American Association of University Professors v. United States Department of Justice (D. Mass. Apr. 11, 2025)
Complaint for Declaratory and Injunctive Relief. Plaintiffs, the Harvard Faculty Chapter of the American Association of University Professors, as well as the American Association of University Professors allege that defendants, the United States Department of Justice, Pamela Bondi, Leo Terrell, U.S. Department of Education, Linda McMahon, Craig Trainor, Thomas Wheeler, U.S. Department of Health and Human Services, Robert F. Kennedy Jr., Sean R. Keveney, National Institutes of Health, Jayanta Bhattacharya, U.S. General Services Administration, Stephen Ehikian, and Josh Gruenbaum have acted unlawfully and misused federal funding and civil rights enforcement authority to undermine academic freedom and free speech on a university campus. Plaintiffs sued after defendants announced an investigation of Harvard University for alleged failures to address Antisemitism and demanded that the University adopt a list of programmatic and structural changes to university management, operations, and curriculum. Plaintiffs allege that defendants described these changes as “non-exhaustive” preconditions for Harvard “to remain a responsible recipient of federal taxpayer dollars” valued at approximately $9 billion. Plaintiffs allege that defendants violated the Administrative Procedure Act (APA) by acting contrary to law and being arbitrary and capricious, violating the Fifth Amendment Due Process Clause, violating Separation of Powers and the Spending Clause, and violating the First Amendment Freedom of Speech protection. Plaintiffs ask the court to (1) declare unlawful and set aside the pending investigation and review of the University’s federal funds; (2) preliminarily and permanently enjoin any further investigation or review of the University’s federal funding, using the withdrawal of federal funds or the threat of withdrawal of federal funds to coerce the University to suppress viewpoints or speech of plaintiffs and their members; and (3) preliminarily and permanently enjoin defendants from using the power of the government to target and punish the University for the viewpoints and speech of plaintiffs and their members.
Topics:
Constitutional Issues | Discrimination, Accommodation, & Diversity | Due Process | First Amendment & Free Speech | Race and National Origin Discrimination
Date:
4/11/2025
U.S. Department of Energy Grant Policy Adjustment for Institutions of Higher Education (Apr. 11, 2025)
The U.S. Department of Energy (the Department) announced a new policy action aimed at halting inefficient spending by colleges and universities. The Department announced that it will limit financial support of “indirect costs” of Department research funding to 15% and ultimately aim to generate over $405 million in annual cost savings. The Department currently provides funding to more than 300 institutions of higher education (IHEs) and stated in the announcement that the average rate of indirect costs incurred is greater than 30%. The Department further stated that it will no longer use the negotiated indirect cost rate for grants awarded to IHEs, and the new 15% indirect cost rate will be the standard for all IHE grant awards. Finally, the Department intends to terminate all grant awards that do not conform to this updated policy.
Topics:
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