Insights

The settlement approval hearing in In re College Athlete NIL Litigation, No. 4:20-cv-03919 (N.D. Cal.) is set for April 7, 2025. Commonly known as the “House Settlement,” the pending resolution between plaintiffs and the NCAA, if approved by Judge Claudia Wilken, could have far-reaching implications for higher education NCAA-member institutions and student-athletes.

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

In what may be the first lawsuit of its kind, a student has sued Yale University alleging that he has been falsely accused of using artificial intelligence on a final exam. The complaint, filed in February, could have far-reaching implications for both the use of AI by students and issues related to academic honesty.

On February 14th, 2025, the Department of Education (the “Department”) issued a Dear Colleague letter (the “Letter” or “DCL”) addressing what the Department thinks may constitute unlawful discrimination on the basis of race, color, or national origin under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other authorities. The Department also announced that it will begin “vigorously enforce[ing] the law” and assessing compliance no later than February 28th, and threatens that educational institutions that fail to comply with the Department’s new view of the federal nondiscrimination laws face investigation and loss of federal funding.

On February 18, President Trump issued an Executive Order titled “Ensuring Accountability for All Agencies” that directs independent agencies (as well as Cabinet Departments and their sub-agencies) to route all “proposed and final significant regulatory” and budgetary actions through the White House and the Office of Management and Budget. If implemented to its full extent, this action will significantly strengthen the authority of the White House by weakening the political autonomy of these independent agencies. As an assertion of the President’s inherent powers under Article II of the U.S. Constitution, it also stands to weaken congressional influence over these independent agencies, both through the appropriations and confirmation processes.

On February 13, 2025, a coalition of sixteen state attorneys general issued a “Multi-State Guidance Concerning Diversity, Equity, Inclusion, and Accessibility Employment Initiatives” (the Guidance). Led by Attorney General Andrea Campbell of Massachusetts and Attorney General Kwame Raoul of Illinois, and joined by the Attorneys General of Arizona, California, Connecticut, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, and Vermont, the Guidance is a direct response to concerns from the private sector in the aftermath of President Trump’s recent Executive Order 14173, which  directed federal agencies “to encourage the private sector to end illegal discrimination and preferences, including DEI.” The Guidance clarifies “the state of the law for businesses, nonprofits, and other organizations operating” in their respective states.

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. 

There has been a lot of talk about diversity, equity and inclusion (DEI) lately, largely due to two recent Executive Orders (EO 14151 and EO 14173) (collectively referred to as “the EOs”) signed by President Trump during his first days in office and subsequent implementing memos issued by the Office of Management and Budget (OMB), the Office of Personnel Management (OPM), and the Justice Department. The EOs aim first to dismantle DEI “mandates, policies, programs, preferences, and activities in the Federal Government.” Specifically, the EOs task the Director of the OPM with reviewing and revising all federal employment practices, union contracts, and trainings to ensure elimination of all DEI and related programs. They next direct federal agencies to combat private sector DEI through civil compliance investigations, to terminate equity-related initiatives, programs, grants, or contracts, and to require certifications (with potential False Claims Act liability if the certifications are not valid) that the contractor or grantee “does not operate any programs promoting DEI that violate any applicable federal anti-discrimination laws.”  These EOs are discussed in detail in our prior Alert.

As of July 1, Utah’s “Equal Opportunity Initiatives” law is in effect.  This law prohibits “discriminatory practices” at higher education institutions, public education systems, and government employers within Utah.  In response to the law, colleges and universities like the University of Utah, Southern Utah University, Utah State University, and Weber State University have reportedly already closed DEI offices and cultural centers.

Last week, the U.S. Department of Defense (“DoD”) issued a memorandum explaining new requirements in its efforts to “Counter[] Unwanted Foreign Influence in Department-Funded Research at Institutions of Higher Education” (the “Memorandum”). The Memorandum discusses DoD’s new processes to review proposals from higher education institutions for fundamental research opportunities, with a focus on security threats posed by China, Russia, and other malign actors.

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 week the U.S. Department of Justice (“DOJ”) and U.S. Department of Commerce announced a new Disruptive Technology Strike Force (the “DIS-TECH Strike Force”). The Strike Force will bring together experts throughout government – including the Federal Bureau of Investigation (“FBI”), Homeland Security Investigations (“HSI”), and 14 U.S. Attorneys’ Offices in 12 metropolitan regions across the country – to target illicit actors, strengthen supply chains, and protect critical technological assets from being acquired or used by nation-state adversaries. The DIS-TECH Strike Force will be co-led by DOJ’s National Security Division (“NSD”) and the Commerce Department’s Bureau of Industry and Security (“BIS”).

In June 2021, Penn State filed a lawsuit for trademark infringement against online retailer, Vintage Brand, LLC for selling items containing the school’s trademarks. Vintage Brand countersued claiming, among other things, that three of the university’s marks at issue should be cancelled because they are ornamental and fail to function as trademarks. It is this claim that Penn State sought to dismiss.

On October 8, 2021, President Biden signed the K-12 Cybersecurity Act of 2021 (the “Act”) that establishes an education cybersecurity initiative to equip elementary and secondary schools with strategies to combat cyberattacks. The Act directs the Cybersecurity and Infrastructure Security Agency (“CISA”) to collaborate with educational leaders and experts to produce a study of the cybersecurity risks facing K-12 schools and develop recommendations for educational institutions to address those risks.

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.

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. 

Many colleges and universities have transitioned to on-line courses and have asked students to vacate campus housing, in response to the COVID-19 pandemic. Now, some of those students have filed putative class actions against both public and private universities – demanding a break on tuition and mandatory and other fees. We anticipate similar class action complaints being filed around the country against other universities.

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.