Insights

On March 20, 2025, President Trump signed an Executive Order titled “Improving Education Outcomes by Empowering Parents, States, and Communities”.

President Trump has issued several executive orders relevant to institutions of higher education. Below we detail key provisions of these executive orders to help colleges and universities stay abreast of the everchanging policy landscape, and to provide takeaways to consider while awaiting further federal guidance. 

The Fourth Circuit and an Arizona district court both have grappled with the issue of whether a school’s 501(c)(3) tax-exempt-status is a form of “federal financial assistance” under various federal nondiscrimination provisions.  For a nonpublic school to be subject to statutes such as Title VI or Title XI, the school must be a recipient of federal financial assistance.

The Biden Administration has taken several steps to respond to the Supreme Court’s June ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, and Students for Fair Admissions, Inc. v. University of North Carolina et al., No. 21-707 (collectively “SFFA”) of which institutions of higher education should be aware.

The Supreme Court on Thursday issued an opinion in Groff v. Dejoy, that affects almost all employers, including institutions of higher education.

On June 29, 2023, the Supreme Court, in Students for Fair Admissions (“SFFA”) v. Presidents and Fellows of Harvard College and SFFA v. University of North Carolina, held that race-based admissions programs violate the Constitution’s Equal Protection Clause (which applies to public institutions such as UNC), as well as Title VI (which applies to private institutions like Harvard).

Last Spring, we reported on the U.S. Department of Education’s reinvigorated enforcement of Section 117 of the Higher Education Act of 1965. On November 13, 2020, the Department, perceiving inadequate institutional compliance, issued a notice designed to clarify its enforcement authority under Section 117. See 85 Fed. Reg. 72567. The notice has the effect of incorporating the foreign gifts and contracts reporting requirements of Section 117 into institutions’ Program Participation Agreements (PPA). Colleges and universities should thoroughly evaluate the reporting requirements and their compliance efforts in light of the Department’s recent focus on and clarifications regarding Section 117.

Since courts first postponed proceedings last spring, the novel coronavirus has continued to rage, ending over 150,000 lives and utterly upending the best laid plans of governments, businesses, and organizations of all kinds. The federal courts are not exempt and, as the spread of the virus is again accelerating, the courts are extending changes made to their standard operating procedures over the past few months into the fall.

In looking to re-open, courts across the country are confronting both the public health and safety needs of their locales, as well as the role remote operations may continue to play. Courts—both federal and state—are reopening and implementing a patchwork of procedures on a court-by-court basis.

On May 6, 2020, the United States Department of Education issued the final rule setting out new regulations governing institutions’ response to sexual harassment and assault allegations under Title IX. Following their November 2018 release in a proposed rulemaking (NPRM), the much-anticipated regulations, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, will have the full force of law, unlike prior guidance. The new regulations, issued after the filing of more than 124,000 public comments on the NPRM, require all institutions receiving federal funding to comply by August 14, 2020.

Amidst the COVID-19 pandemic and increased uncertainty on campuses across the country over enrollment, instructional modes, and revenue planning, the United States Department of Education (DoE) is poised to issue the final rule implementing Title IX. The regulations have been in the “Final Rule Stage” since November 2019, and the Office of Management and Budget (OMB) review concluded March 27, 2020. 

The COVID-19 pandemic has resulted in a massive number of unforeseen cancellations of events and the inability to use paid subscriptions, memberships, and season passes. These range from gym and amusement park closings, to postponed sports seasons, to concert and vacation travel/accommodation cancellations. We previously wrote about the impact of the postponement of the 2020 Tokyo Olympics. Putative classes of consumers have begun to seek refunds of previously paid dues and fees for cancelled events and their inability to use services, putting liquidity strains on the offering businesses. Consumers are supported by some State Attorneys General who are advocating for consumers to receive refunds, avoid cancellation fees, and to otherwise be let out of contracts involving health club memberships and theme parks and more; it would not be surprising if this list grew.

As discussed last week, many courts have issued standing orders delaying civil case deadlines. Litigants should note, however, that discovery-related deadlines set pursuant to statute, local rule, or case-specific scheduling orders have sometimes been excluded from the blanket extensions granted by federal and state trial courts. For example, while the Northern District of Illinois’ 39-day blanket extension order explicitly encompasses discovery deadlines, the District of Maryland explicitly exempted the conduct of discovery in civil cases from its 84-day extension of other civil filing deadlines. And although California state courts have suspended all jury trials for 60 days, that order does not appear to extend to discovery deadlines, which under California law are not automatically affected by a change in the trial date. It is therefore important for litigants with active cases to consider whether and how any COVID-related delays impact pending discovery deadlines—and if standing delay orders do not provide any relief from discovery obligations, consider whether such relief may be warranted.

As we discussed a few weeks ago, the federal courts’ responses to COVID have varied widely. One of the most common responses across the federal courts, however, has been the extension of filing deadlines—although the particular deadlines affected and the length of the extensions granted (again) vary. To give a few examples from all levels of the federal court systems:

Last week, we discussed COVID-related developments in the federal courts of appeals and federal district courts, noting the wide variety of measures that those courts have taken to adjust their operations in light of the COVID-19 pandemic. The state courts have taken a similarly wide range of measures to address this crisis, drastically altering many of their operations. State courts have been even more varied in their approach than the federal courts, with different levels of courts within the same state taking different (and sometimes potentially conflicting) actions. For example, the California Supreme Court and six appellate divisions have automatically extended all deadlines set forth in the California Rules of Court by 30 days—but those extensions have different effective dates and will expire on different days in mid- to late April. Moreover, those blanket extensions do not appear to cover filing deadlines for notices of appeal or designations of the record in the superior court. To complicate matters further, some of the California courts do not allow e-filing, suggesting that filings may still need to be submitted at the court house drop box—despite the fact that many courts are ostensibly closed to the public.

The U.S. Department of Education recently has reinvigorated its enforcement of a decades old provision requiring the reporting of foreign gifts and contracts. Section 117 of the Higher Education Act of 1965, 20 U.S.C. § 1011(f), enacted in 1986 to address concern over the growing number of financial arrangements between American universities and foreign sources, requires institutions of higher education to report to the Department of Education contracts with and gifts from a foreign source that, alone or combined, are valued at $250,000 or more in a calendar year. As part of its efforts to make Section 117 reporting more transparent, the Department of Education has posted a public report of the foreign gifts reported by institutions between January 2013 and June 2019 on its website. In the past, Section 117 was largely ignored. While the Department previously had provided only sparse guidance regarding Section 117, it recently has engaged in a flurry of enforcement activity and issued sub-regulatory guidance providing more clarification regarding its expectations for reporting. Universities therefore should thoroughly evaluate the reporting requirements and their compliance efforts in light of the Department of Education’s renewed focus on Section 117.