By: Christa Richer Cook

The U.S. Department of Education, on Jan. 21, 2026, withdrew its appeal to the U.S. Court of Appeals for the Fourth Circuit aimed at defending its anti-DEI Dear Colleague Letter issued last year. The Trump Administration’s decision to formally drop its appeal leaves in place a federal district court’s ruling finding the Dear Colleague Letter unenforceable.

Background

On Jan. 21, 2025, President Trump signed an Executive Order (EO), “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.”  Broadly speaking, the EO purported to prohibit what it characterized as unlawful “Diversity, Equity and Inclusion” programs (a term it did not explicitly define). On Feb. 14, 2025, the federal Department of Education, Office for Civil Rights (DOE) issued guidance in the form of a Dear Colleague Letter (DCL). The controversial DCL cited the U.S. Supreme Court decision in SFFA v. Harvard, which had banned the use of race in college admissions, as a basis for targeting various diversity, equity and inclusion programs and initiatives across a broad spectrum of areas in higher education. The DOE insisted that the DCL was merely reiterating existing legal requirements under Title VI of the Civil Rights Act of 1964 and other constitutional mandates. The DCL stated, in part,

In recent years, American educational institutions have discriminated against students on the basis of race, including white and Asian students, many of whom come from disadvantaged backgrounds and low income families. These institutions’ embrace of pervasive and repugnant race-based preferences and other forms of racial discrimination have emanated throughout every facet of academia.

The DCL went on to state:

Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon “systemic and structural racism” and advanced discriminatory policies and practices. Proponents of these discriminatory practices have attempted to further justify them—particularly during the last four years—under the banner of “diversity, equity and inclusion” (“DEI”), smuggling racial stereotypes and explicit race-consciousness into everyday training, programming and discipline.

The DCL went on to claim that institutions have violated the law by relying on nonracial information as a proxy for race and teaching students that certain racial groups bear unique moral burdens that others do not. On March 1, 2025, the DOE released Frequently Asked Questions (FAQs) further analyzing the issues outlined in the DCL.

The controversy surrounding the Dear Colleague Letter unraveled into injunctions, stays, and ultimately a federal district court ruling that voided the guidance altogether.  On Aug.14, 2025, in American Federation of Teachers v. Department of Education, Judge Stephanie Gallagher of the U.S. District Court for the District of Maryland ruled that the DCL violated the Administrative Procedure Act (APA) and ran afoul of the First Amendment. While the Maryland district court did not rule on the specific contents of the DCL, the DCL was found legally void and unenforceable across the nation, resulting in the issuance of a preliminary injunction blocking the DCL. Judge Gallagher wrote that the DCL did not merely remind institutions that discrimination is illegal, but rather “initiated a sea change in how the Department of Education regulates educational practices and classroom conduct, causing millions of educators to reasonably fear that their lawful, and even beneficial, speech might cause them or their schools to be punished.”

Indeed, in the Maryland district court’s ruling enjoining the DCL, it was noted that the DOE cited the DCL to initiate 51 Title VI investigations on March 14, 2025. Some of those investigations have since resulted in resolution agreements in which colleges and universities promised to cease certain programs that the DOE deemed as unlawful DEI.  Notably, even prior to the decision in AFT, two other courts had blocked the DOE’s anti-DEI measures, including the DCL, an anti-DEI complaint portal and an anti-DEI Certification requirement.

In Oct. 2025, the government filed an appeal with the Fourth Circuit Court of Appeals in an attempt to defend and enforce the DCL. Earlier this week, the DOE signed a joint motion to dismiss the appeal before the Fourth Circuit.

Implications for IHE

What does the DOE’s sudden willingness to abandon its appeal and defense of the DCL mean for colleges and universities? Over the past year, many IHE have made significant changes to their DEI offices, programs and websites and some have implemented robust internal review processes to monitor new grant programs and other third-party partnerships.

The more nuanced aspects of the DCL, such as the use of other characteristics the DCL labeled “proxies” for race and the implications of differences in the regulatory schemes between Title VI and Title IX as applied to outside opportunities and financial aid, were more complicated to analyze and assess risk. For example, determining what is a proxy for protected characteristics versus what criteria are lawfully used requires a specific, fact-based analysis. These and certain other aspects of the DCL were less clear as to scope and the DOE’s interpretation against existing civil rights law.  Certain aspects of the DCL arguably extended beyond existing statutory and regulatory mandates and could not be traced to caselaw developed by the courts.   

Institutions should not, however, assume that the absence of the DCL eliminates all legal concerns with respect to DEI programs and policies. As a general matter, DEI is not, per se unlawful.  There is – and always has been – a difference between “unlawful” and “lawful” programs that may fall under a “Diversity, Equity and Inclusion” framework. In addition, as a general matter, an entity engages in unlawful discrimination when it makes decisions or extends preferential treatment based on an individual’s race, color, ethnicity, sex or various other protected characteristics. These two concepts have been and continue to remain true. Despite the DOE’s willingness to abandon the DCL, IHE are likely to continue to experience challenges to DEI programs by the DOE, individuals and advocacy groups. There remains the risk of liability based on illegal discrimination, even if the illegal discrimination resulted from well-intentioned efforts to increase diversity. IHE may still face the risk of compliance issues based on programs that run afoul of long-settled requirements that programs and activities generally be open to all students.  The DCL was not integral to such challenges, as some programs and policies, including, but not limited to, race-based, sex-based or other demographically restricted scholarships or programs, have been identified by DOE as potentially unlawful long before the beginning of the second Trump Administration.  DOE has historically taken the position that, generally speaking, all programs and activities must be "open to all" and not exclusionary based on protected characteristics. Thus, some programs currently under attack as “unlawful DEI” have presented compliance issues long before the February 14 DCL. Those issues continue to pose risks and should be assessed and addressed if warranted.

As was the case before this latest development, DEI programs, policies and initiatives should be reviewed to ensure their compliance with existing anti-discrimination law. The level of internal review and scrutiny will continue to remain an individualized and case by case judgment for each college and university. DOE is not the only agency warning recipients of federal funding of the government’s concerns with DEI initiatives. On July 29, 2025, the U.S. Department of Justice (DOJ) issued a memorandum providing guidance on the application of federal antidiscrimination laws to DEI programs and specifically warning that federally funded entities may not make decisions—such as hiring, admissions, contracting or programming—based on protected characteristics like race or sex, even if pursued under the banner of diversity or equity. Moving forward, close attention should be paid to the rapidly occurring developments against the backdrop of enforcement actions by both federal and state officials, including the DOJ and the Equal Employment Opportunity Commission, as well as the possibility of private litigation.

Bond continues to follow these and related developments closely. Please contact Christa Richer Cook or a Bond attorney with whom you normally work, for questions, concerns and tailored consultation.

By: Kristen J. Thorsness

The current administration’s focus on using Title IX to preclude athletic participation by trans female athletes may give colleges and universities the impression that other Title IX athletics compliance issues, such as meeting the “Three-Part Test” regarding participation opportunities for its student-athletes, are of less import. However, even if the Department of Education is not prioritizing such investigations at this time, Title IX still allows students to pursue litigation on their own to enforce Title IX’s equity in athletics rules through the courts. 

The latest example can be seen in a Jan. 20, 2026 decision by the Sixth Circuit Court of Appeals in Niblock v. University of Kentucky (UK),[1] where plaintiffs alleged that UK failed to provide sufficient participation opportunities for female student-athletes to meet its Title IX obligations.  

Title IX states that “[n]o person in the United States … shall, on the basis of sex, be excluded from participation in, be denied the benefits o or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” including in athletics.[2] The Department of Education (DOE) created a “Three-Part Test” for Title IX compliance in the area of participation opportunities, which assesses:

(1) Whether varsity athletics participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

(2) Whether the institution can show a history and continuing practice of program expansion which is responsive to the developing interest and abilities of the members of any underrepresented sex; or

(3) Whether the institution can demonstrate that the interests and abilities of the members of any underrepresented sex have been fully and effectively accommodated by its present program.[3]

Because of the alternative nature of this test, a Title IX plaintiff must show that a school fails to meet all three of these standards. In Niblock, the Sixth Circuit affirmed the District Court’s finding, following a three-day trial, that UK failed to meet the first two prongs of Title IX’s Three-Part Test, but that plaintiffs failed to show sufficient unmet interest and abilities among UK’s female students to support a viable team with a reasonable expectation of competitiveness. Accordingly, the Sixth Circuit upheld the District Court’s ruling that plaintiffs failed to establish a violation of Title IX. Certain key takeaways warrant attention:

1. Impact of Loper Bright on the Three-Part Test

In both the trial and appellate courts, UK argued that, with the demise of the doctrine of regulatory agency deference resulting from the U.S. Supreme Court’s 2024 Loper Bright decision,[4] DOE’s regulations and guidance – including the Three-Part Test – are not entitled to deference and should be disregarded. The District Court found that the Sixth Circuit’s prior adoption of the Three-Part Test justified its continued application, as recognized in the Loper Bright decision. The Sixth Circuit avoided ruling on this issue, finding that plaintiffs’ failure to establish UK’s noncompliance with the Three-Part Test rendered such a ruling unnecessary. 

However, this open issue could dramatically impact Title IX enforcement and private litigation in the future. Two Sixth Circuit judges filed a separate concurrence, arguing that Loper Bright “should prompt us to revisit” DOE’s regulations and guidance and reject the Three-Part Test. Without the Three-Part Test, they wrote, “many indicators show that Title IX likely prohibits only intentional discrimination … on the basis of sex.” Thus, only gender inequities that could be proven to be the result of intentional discriminatory animus would run afoul of Title IX, regardless of any inequity resulting from institutional practices.

2. Measuring Interests and Abilities

So long as the Three-Part Test stands, each institution has an ongoing duty to collect and assess information regarding student athletic interests and abilities. One common part of a school’s assessment of interests and abilities is a survey of its student body, which must be conducted with sufficient frequency to capture changing interest and abilities during students’ tenure at the institution. This survey featured prominently in the Sixth Circuit’s decision. At UK, all first-year, sophomores and juniors were required to complete an athletics interests and abilities survey as a prerequisite to registration for classes. This resulted in a very high response rate of 70-80% of the undergraduate student body and may set a new high “bar” for other institutions to meet. 

The court noted that plaintiffs presented evidence reflecting a fair amount of interest in the three sports they claimed should be added at UK (equestrian, lacrosse and field hockey). However, there was only scant objective evidence of sufficient ability to compete at Division I level, and not nearly enough to field viable teams in any of the three sports at issue. As the Sixth Circuit observed, “Title IX does not require a school to attempt to form a new team unless the student body can field teams to compete” at the varsity level. 

Moreover, UK’s survey asked students who were interested in athletics participation to provide contact information in order for UK to “consider [their] information,” but only very few did so. Although the District Court said that “UK cannot form a new team based on anonymous responses,” the Sixth Circuit declined to “create a blanket rule against anonymous accounts of ability or a prohibition on survey results in Title IX cases.”    

Bond will continue to track both litigation and enforcement activity in this space. If you have any questions about this update or Title IX athletics compliance, please contact Kristen Thorsness or any Bond attorney with whom you work regularly.
 

[1]  6th Cir. No. 24-6060, 2026 U.S. App. LEXIS 1356.

[2]  20 U.S.C. § 1681(a); 45 C.F.R. § 86.41(c); 34 C.F.R. § 106.41(c). 

[3] 1979 Policy Interpretation, 44 Fed. Reg. 71,413, 71,418 (Dec. 11, 1979).

[4] Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024).

By: Kymberley Walcott-Aggrey and Gabriel S. Oberfield, Esq., M.S.J.

New York has enacted two significant AI-related laws aimed at “protecting consumers and boosting AI transparency” as part of the state’s AI regulatory agenda at the very moment the federal government is asserting a contrary, preemptive posture in the space. The result is a potentially fast-evolving compliance landscape for institutions of higher education (IHEs) and other entities that incorporate AI in recruitment, development and other promotional or marketing materials created or disseminated in New York, or that use AI-generated digital replicas of deceased individuals.

The New Laws at a Glance

Governor Hochul signed two bills that establish concrete limitations on certain AI uses.  The first bill, S. 8420-A/A.8887-B, likely has the broadest potential impact for IHEs and their communications teams in recruitment, alumni, development and other functions using AI to create content, as it requires disclosure when advertisements include “AI-generated synthetic performers,” defined as “digitally created media that appear as a real person.”  S. 8420-A/A.8887-B imposes civil penalties – $1,000 for a first violation and $5,000 for subsequent violations. The law takes effect 180 days after signing, making mid-June 2026 a critical compliance date for IHEs that use or procure AI-enhanced media.

The second bill, S.8391/A.8882, requires consent from heirs or executors before using the name, image or likeness of a person who has died via digital replicas. S.8391/A.8882 amends definitions of ‘deceased performer,’ ‘deceased personality,’ and ‘digital replica,’ in relation to the right of publicity, effectively restricting the use of digital replicas. This law is immediately enforceable and requires violators to pay the greater of $2,000 or compensatory damages, plus any profits attributable to the unauthorized use. Courts may also award punitive damages.

Federal Preemption Risk

On Dec. 11, 2025, the President issued an Executive Order (EO) seeking to curb state regulation of AI and to avoid a “patchwork” of divergent state standards. The order directs the U.S. Attorney General to challenge state laws perceived to impede AI development. Notwithstanding questions concerning the EO’s enforceability, the EO introduces uncertainty about whether and when federal action might preempt or chill enforcement of state AI statutes.

Practical Implications for IHEs

IHEs routinely produce and procure content across admissions, development, athletics, performing arts, continuing education and online programs – functions where AI tools can generate or manipulate images, voices and likenesses. To avoid penalties under S. 8420-A / A.8887-B, campuses should ensure that any advertisement containing AI-generated content that could meet the definition of a “performer” that “appear[s] as a real person” include required disclosures before the mid-June 2026 effective date. While the law’s definition would not reach AI-generated illustrations or stylized images, disclosure of AI use in these contexts may still be covered by a college or university’s own internal policies.

For deceased individuals – such as notable figures from an institution’s history, alumni, donors, faculty, artists or athletes – consent must be obtained before deploying a digital replica in promotional materials, virtual tours or commemorations. With the law already enforceable, IHEs should already be taking steps to ensure that institutional content does not include such AI-modified likenesses (or that appropriate consents are provided).

Recommended Next Steps for IHEs

These obligations carry operational and contractual implications. Vendor agreements for marketing, creative services and media production should be updated to include disclosures for AI- generated content where applicable and the consent requirement for the use of postmortem digital replicas. Internal review processes should identify where synthetic media appears in IHE channels and track disclosure and consent status. IHEs also should monitor federal developments and potential litigation over the EOs preemptive thrust, recognizing that compliance must align with current state law while remaining adaptable to potential federal shifts.

This piece complements the article titled “New Laws in New York Apply Guardrails to AI While the President Seeks to Federally ‘Legislate’ AI Through an Executive Order” authored by Bond Attorneys Gabriel S. Oberfield and Mark A. Berman and published in the New York Law Journal, available here.

Bond’s Higher Education practice group will monitor developments concerning these and related laws. For more information, please contact Kymberly Walcott-Aggrey, Gabriel S. Oberfield or any attorney in Bond’s higher education practice group with whom you work regularly. 

By: Brittany J. Schoepp-Wong and Timothy Bouffard*

Colleges and universities throughout New York will now be required to publish their policies on the circumstances under which they will notify parents, guardians or other emergency contacts when a student under 21 has an alcohol or controlled substance violation, including hospitalizations and overdoses. Known as “Beau’s Law,” it is named after Beau Miller, a Lockport, NY native who died from an accidental fentanyl overdose in the spring of 2022, after he had previously overdosed while at college. The law, Senate Bill S3390A/Assembly Bill A4872, adds a new Section 6438-D to New York’s Education Law and was signed by Governor Kathy Hochul on Dec. 5, 2025. Colleges and universities may need to update their Family Educational Rights and Privacy Act (FERPA) policies to address the new law’s requirements, along with ensuring FERPA training is being offered in compliance with the law’s new mandates.

Under FERPA, institutions are already authorized to disclose, without a student’s consent, information to parents and guardians about drug and alcohol disciplinary violations when the student is under the age of 21 at the time of the disclosure.  34 C.F.R. §99.31(a)(15). FERPA also separately permits disclosure, again without a student’s consent, in any type of health and safety emergency. 34 C.F.R. §99.31(a)(10).  FERPA provides guidance on how to make a health and safety assessment, explaining that institutions “may take into account the totality of the circumstances” and may make disclosures when they determine “there is an articulable and significant threat to the health or safety of a student.” 34 C.F.R. §99.36(c). Where there is a “rational basis” for the determination based on the information available, the Department of Education will not substitute its own judgment over the institution’s.  Id. 

These disclosures under FERPA are, however, permissive—FERPA does not mandate them—and the new state law requires New York institutions to share their policies on whether such disclosures are made. The new law does not dictate what an institution’s notification policy must be but requires a policy to be publicly available to promote transparency for both parents and students. Institutions may already have internal practices or guidelines that they use to make such notification decisions that will need to be made public; other institutions may need to develop a rule or set of guidelines that address whether and how institutions decide to notify parents.  Institutions may wish to consider whether such notifications are discretionary or mandatory in certain circumstances, who on campus makes that determination, and how both parents and students are informed about the disclosure.     

The new law also requires New York colleges and universities to conduct “regular” training on FERPA “related to health and safety emergencies and the impact on an institution’s response to student alcohol or controlled substance-related hospitalizations or overdoses.” The law leaves timing, parameters and attendees of the training up to institutions.

The law takes effect July 1, 2026, and therefore will require compliance ahead of the 2026-27 academic year. 

If you have questions about these new requirements, would like help updating your policies to comply or have other questions about FERPA and student health and conduct matters, please contact Brit Schoepp-Wong or another attorney in Bond’s Higher Education Practice. Bond attorneys can provide FERPA training to comply with the new law or provide materials for institutional training teams to use.

*Special thanks to associate trainee Timothy Bouffard for his assistance in the preparation of this memo. Tim is not yet admitted to practice law.

By: Bond's Immigration Practice Group

On Sept. 19, 2025, the U.S. Department of Labor (DOL) announced the launch of “Project Firewall”, a sweeping new H-1B enforcement initiative designed to protect American workers and ensure employers comply with program requirements. For the first time in the Department’s history, the Secretary of Labor will personally certify the initiation of H-1B investigations where there is “reasonable cause” to believe that violations exist. This significant expansion of enforcement authority signals a clear shift toward aggressive oversight of the H-1B program. Employers found in violation of H-1B program requirements may face serious consequences, including back wage liability, civil monetary penalties and debarment from future use of the program.

Project Firewall also emphasizes interagency collaboration.  DOL will coordinate with the Department of Justice’s Civil Rights Division, the Equal Employment Opportunity Commission, and U.S. Citizenship and Immigration Services to combat purported discrimination against U.S. workers and coordinate enforcement efforts across the federal government.  As a result of this renewed focused on interagency collaboration, employers should expect increased audits, greater information-sharing between agencies and heightened scrutiny in industries that heavily rely upon H-1B workers.

Given this enforcement environment, employers are strongly encouraged to take proactive steps now. Specifically, employers should conduct internal audits of their Labor Condition Applications and public access files, confirm that H-1B workers are being paid the required wages and ensure that job duties and employee work locations align with certified Labor Condition Applications. Employers would also be well served to review hiring and recruitment practices to assess whether qualified U.S. applicants are potentially disadvantaged, and HR and compliance teams should be trained to respond effectively to government inquiries. Finally, engaging outside counsel for a privileged compliance review can help identify and correct potential gaps before they become enforcement issues.

The announcement of Project Firewall underscores the Trump administration’s focus on “America first” priorities and rationalizes this particular enforcement initiative as a way to ensure that highly skilled jobs are offered to American workers first. Employers that rely on H-1B workers should act quickly to review and strengthen internal H-1B compliance protocols, prepare for potential government investigations and/or onsite inspections, closely monitor further guidance from DOL and its partner agencies.

We will continue to monitor developments closely, including the possibility of litigation or further agency guidance that could alter the scope of the requirement. Please contact any member of our Immigration Practice Group with questions regarding how this proclamation may affect your business or employees.

By: Kseniya Premo

On Sept. 19, 2025, President Trump issued a Presidential Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers,” which imposes a new $100,000 supplemental payment requirement on H-1B nonimmigrant petitions. The proclamation applies only to new H-1B petitions filed on or after 12:01 a.m. (ET) on Sept. 21, 2025, and is currently set to remain in place for 12 months unless extended. Employers must submit proof of payment at the time of filing, and both the Department of Homeland Security (DHS) and the Department of State will be responsible for verifying compliance. Limited exceptions may be granted if DHS determines that employing a particular H-1B worker is in the national interest.

In a memorandum dated Sept. 20, 2025, U.S. Customs and Border Protection (CBP) clarified that the supplemental fee prospectively applies only to petitions filed on or after Sept. 21 and does not affect petitions filed before that date. CBP also confirmed that the requirement does not apply to foreign nationals who already hold valid H-1B visas or to beneficiaries of approved petitions. Current H-1B visa holders may continue to work, travel, and reenter the United States under existing approvals, and CBP will process their entries according to current policy.

On the same day, the White House Press Secretary stated that the $100,000 fee is intended to be a one-time payment applicable only to new visas – not to renewals, extensions or reentries by existing H-1B visa holders. Later that evening, U.S. Citizenship and Immigration Services (USCIS) issued guidance confirming that the requirement does not apply to petitions filed before Sept. 21 or to individuals who already hold valid H-1B visas. However, USCIS did not expressly address whether the fee will extend to petitions for extensions or changes of status filed within the United States. Until further clarification is issued, there remains a risk that the government could interpret the requirement more broadly than currently suggested.

The practical implications of this new policy are significant. Employers planning to file new H-1B petitions for individuals who are outside of the United States should budget for the substantial additional cost and consider the uncertainty surrounding extensions and changes of status. For current H-1B visa holders, the immediate concern lies in international travel. Given the heightened scrutiny and evolving guidance, we recommend avoiding international travel whenever possible. If travel cannot be avoided, H-1B employees should be prepared to present the CBP memorandum dated Sept. 20, 2025, along with their original passport containing a valid visa, their H-1B approval notice, and recent paystubs or an employment verification letter.

We will continue to monitor developments closely, including the possibility of litigation or further agency guidance that could alter the scope of the requirement. Please contact any member of our Immigration Practice Group with questions regarding how this proclamation may affect your business or employees.

On July 4, 2025, President Trump signed into law the legislation commonly referred to as the One Big Beautiful Bill Act (the “Act”).  One of the provisions of the Act that positively impacts educational institutions and other employers addresses Internal Revenue Code (“IRC”) Section 127 Educational Assistance Plans (“127 Plans”), which has historically provided a tax benefit for employer-provided educational assistance and thus served as a valuable hiring and retention resource for employers.  

The two positive impacts include that the Act now makes the tax exemption of these benefits permanent and allows the amount of assistance to increase with the rate of inflation.

Background on Section 127 Plans

Prior to the Act, IRC Section 127 provided an annual exclusion of $5,250 for employer-provided educational assistance pursuant to a qualified educational assistance program. To qualify under IRC Section 127, an educational assistance program must among other things:

• Provide benefits exclusively to employees of the employer (including current and former employees);
• Provide only qualified educational assistance benefits;
• Be a separate written program established by the employer and disclosed to employees that does not allow employees a choice between educational assistance benefits and cash; and
• Not discriminate in favor of highly compensated employees. 

The education that is provided under the qualified educational assistance program does not need to be work related, nor does it need to be part of a degree program. Educational assistance may include any form of instruction or training that improves or develops the capabilities of an individual and can cover a broad array of educational pursuits and most types of education-related expenses, including both undergraduate and graduate level courses. 

Qualified educational assistance includes the cost of tuition, fees, books and similar payments. The cost of supplies and certain equipment can also qualify, but only if the employee cannot retain the supplies and equipment after a course is completed.  The cost of meals, transportation, and lodging cannot qualify as educational assistance under IRC Section 127, even if the expenses are incurred by an employee in connection with attending a course of instruction.

Additionally, IRC Section 127 had been temporarily expanded under the “CARES Act” through Jan.1, 2026, to allow employees to exclude from their taxable income, payments of principal or interest made by their employer on qualified education loans that employees incurred for their own education. Qualified education loans cover loans for tuition, fees and room and board expenses incurred by students who are enrolled at least half-time in a degree program at an accredited post-secondary institution. Loans that refinance a qualified education loan will themselves be considered qualified education loans. Employers can make excludable payments to the employee or directly to the lender. Loan payments must be aggregated with any other educational assistance received by the employee when applying the statutory annual maximum of $5,250. 

Changes to Section 127 Plans under the Act

The Act makes two significant changes to Section 127 Plans.  The “CARES Act” expansion of IRC Section 127 is now permanent, allowing annual employer provided tax free amounts to be used for student loan repayment and tuition assistance.  Additionally, pursuant to the Act the annual tax free benefit of $5,250, which had been capped for decades, will be indexed annually for inflation beginning in 2026.

What Should Employers Do Now?

Employers should conduct a review of their existing Section 127 Plans and prepare any revisions necessary to address the benefits allowed under the Act. Alternatively, employers without a Section 127 Plan may also wish to consider putting such a plan in place. In either case, it may be helpful to remind employees of the benefits available under the Act with respect to Section 127 Plans.

Bond Schoeneck & King PLLC has helped many employers address their educational assistance plan needs. If you have any questions or concerns relating to Section 127 plans, please contact Frank C. Mayer, chair of Bond’s tax law practice group, Jane Sovern, member of Bond’s higher education practice group, Sara Richmond, member of Bond’s school law practice group, or the attorney at the firm with whom you are regularly in contact.

As colleges and universities across New York welcome students back to campus this fall, New York State Gov. Kathy Hochul has signed into law a new requirement for all New York higher education institutions to appoint a Title VI Coordinator and undertake related training and notifications to their communities. The law, which had bipartisan backing in both legislative chambers (Senate Bill S4559B / Assembly Bill A5448B) and was signed into law on August 26, 2025, amends the New York Education Law by adding a new Section 6436-a to Article 129-A. The law is the first of its kind in the nation, going beyond even current federal mandates on Title VI of the Civil Rights Act of 1964, which do not, as of yet, specifically require all institutions to appoint a Title VI Coordinator. 

The law comes on the heels of increased focus on Title VI and particularly its application to antisemitic incidents on campuses. Indeed, Governor Hochul specifically cited combating antisemitism in signing the bill, while also acknowledging other forms of bigotry. Title VI prohibits discrimination on the basis of race, color and national origin – including shared ancestry and ethnicity – in any program or activity of a federally funded school. 

The new state law is not the first time New York has created requirements related to federal nondiscrimination law. Institutions are by now well familiar with the requirements of Article 129-B of the New York State Education Law, which covers institutional response to sexual assault, dating violence, domestic violence and stalking, thus overlapping with Title IX and the Violence Against Women Act (VAWA) amendments to the Clery Act. 

Designation and Core Duties of Title VI Coordinator

Institutions must designate a Title VI Coordinator to serve as the central point of contact for coordinating and overseeing a centralized process for compliance with Title VI, akin to the role of Title IX Coordinators. The law does not prescribe the parameters on how the position is filled, but it permits the Title VI Coordinator to also have other duties. Institutions will likely need to assess the following to determine how to structure the role, including whether a full-time appointment (and, possibly, additional roles) may be necessary:

• historical incident volume;
• capacity in existing roles;
• reporting structures;
• existing procedures;
• alignment with processes for discrimination complaints involving other protected characteristics, as well as for employees; and
• the law’s other new obligations.

The law specifically permits the appointment of designees and collaboration with other institutional employees to assist in compliance with the new requirements, but vests ultimate responsibility for compliance with the Title VI Coordinator. Although not specifically noted, designating one person to be both the Title IX and Title VI Coordinator could be compliant with the law.

The Title VI Coordinator has enumerated responsibilities under the new law once a discrimination or harassment report is received, which include:

• offering supportive measures to complainants;
• notifying students who report conduct that may implicate Title VI of the institution’s policies and procedures; and
• ensuring there is a process for investigation and resolution of complaints consistent with obligations under both federal and state law.[1]

The Title VI Coordinator is also required to establish and maintain appropriate recordkeeping, including records related to assessments of reports and actions taken in response, as well as records related to trainings (see below).

Annual Notification

Title VI Coordinators must notify all students and employees of the institution’s policies and procedures for reporting discrimination and harassment each academic year. In crafting the annual notification and aligning with notifications on other covered forms of discrimination, institutions will need to ensure the annual notification covers each piece of information required by the new law, including:

• the college or university’s nondiscrimination policy statement;
• links to relevant reporting policies and procedures;
• the Title VI Coordinator’s contact information; and
• any other information the Title VI coordinator and the institution deem necessary.

Training

Additionally, institutions will be required to deliver annual training to all students and employees to “ensure institutional compliance.” The law directs the New York State Division of Human Rights to coordinate with higher education institutions to develop a model training, though institutions will also be permitted to use their own equivalents. While this model training is being developed, institutions may wish to take stock of existing training requirements and the populations to whom such training is already delivered, as well as begin planning for the logistical aspects of delivering training to their communities.

Separately, Title VI Coordinators and any designees are required to undergo training on Title VI and the responsibilities of the new state law. 

Timing

The law becomes effective one year from its enactment (i.e., August 26, 2026). Once effective, institutions have 90 days to appoint a Title VI Coordinator. Training obligations begin the first full academic year after the effective date (i.e., academic year 2026-27). While this timeline provides a long runway for institutions to implement the law’s requirements, given the heightened enforcement focus on Title VI, institutions may wish to consider which elements of the law can be implemented sooner to help promote compliance with Title VI as well as state nondiscrimination laws.

If you have questions about these new requirements, require assistance in developing training programs for Title VI Coordinators or have other questions related to Title VI and nondiscrimination issues, please contact Brittany Schoepp-Wong, Camisha Parkins or any attorney in Bond’s Higher Education practice.

[1] Of note, institutions’ obligations under Title VI have been largely defined through Dear Colleague Letters, investigations, and resolution agreements by the U.S. Department of Education’s Office for Civil Rights; the federal government has not, to date, promulgated regulations specifically governing the procedures that apply to Title VI investigations akin to the Title IX regulations.

On Aug. 7, 2025, the President issued a Memorandum to the Secretary of Education (“Memorandum”) titled “Ensuring Transparency in Higher Education Admissions.” The Memorandum is a product of recent Administration priorities aimed at limiting or eliminating the use of race in college and university admissions.

The Trump Administration’s Memorandum relies on the Supreme Court’s June 2023 decision in Students for Fair Admissions (wherein the Court held that affirmative action programs that do not comply with the Court’s strict scrutiny standard violate the Constitution) for the premise that “the Supreme Court of the United States has definitively held that consideration of race in higher education admissions violates students’ civil rights.” The Memorandum states that colleges and universities engage in “rampant use” of certain “racial proxies” like diversity statements, which the Administration describes as “concern[ing]” and practices that “threaten our national security and well-being.”

The Memorandum directs the Secretary of Education (the “Secretary”) to, within 120 days, “expand the scope of required reporting to provide adequate transparency into admissions….” To that end, it directs the Secretary to “increase accuracy checks of submitted data to ensure the validity of [the Integrated Postsecondary Education Data System] IPEDS data.” (Emphasis added.)

Coupled with the Memorandum, the Administration also released a Fact Sheet, which explained the “lack of available admissions data from universities – paired with the rampant use of ‘diversity statements’ and other overt and hidden racial proxies – continues to raise concerns about whether race is actually used in admissions decisions in practice.” The sheet further touted the Administration’s efforts in “holding elite universities accountable,” through various agreements and settlements.

The Memorandum mandates the Secretary to “revamp the online presentation of IPEDS data, such that it is easily accessible and intelligibly presented for parents and students” and to, if necessary, “overhaul the IPEDS data collection portal to remove inefficiencies and better streamline the process to more efficiently organize and utilize the data received from the institutions.”

The National Center for Education Statistics (“NCES”) is the principal federal agency responsible for collecting, analyzing and reporting data on education in the United States. IPEDS, which is managed by NCES, constitutes the “core postsecondary education data collection program, designed to help NCES meet its mandate to report full and complete statistics on the condition of postsecondary education in the United States.” NCES Handbook of Survey Methods, Integrated Postsecondary Education Data System (IPEDS).

IPEDS collects data annually via surveys from every postsecondary institution participating in federal student financial aid programs. Colleges and universities are already required to report certain information to IPEDS, including the race and ethnicity of their students, pursuant to the Higher Education Act and related regulations. Colleges and universities that do not comply with IPEDS reporting requirements are subject to penalties, including fines.

In a notice seeking public comment (the “Notice”) on the Memorandum, the Department of Education provides insight on the type of data it intends to collect. The Department indicates it plans to seek data based on, inter alia, students’ race, sex, high school GPA, test scores, time of application, types of application (early decision, early access or regular decision), ranges of family income, Pell Grant eligibility, parental education and financial aid status. The data that the Department intends to collect on financial aid awards will include both merit-based and need-based scholarships, and any financial aid from federal, state or local sources, disaggregated by a variety of factors, including admissions test scores, high school GPA, ranges of family income and whether the student was admitted via early decision, early action or regular admission. The Notice signals that a new IPEDS “Admissions and Consumer Transparency Supplement” (ACTS) survey component would be the means to collect this data, but not necessarily every institution would be required to participate.

The Notice explains that four-year institutions with “selective” admissions, as opposed to trade schools and community colleges, “have an elevated risk of noncompliance with the civil rights laws” and “in awarding scholarships because of their selectivity” and therefore would be subject to the ACTS survey component. The ACTS survey would seek data on undergraduate and graduate students for the five prior academic years to help “establish a baseline of admissions practices from before” the Supreme Court’s decision in Students for Fair Admissions.

The Notice seeks public input regarding (1) whether there are certain academic institutions or characteristics of academic institutions that make them at high or low risk of noncompliance to help the Department identify whether it should narrow or expand the scope of institutions required to complete the ACTS survey; (2) whether open enrollment institutions (community colleges and trade schools) are “at-risk of noncompliance with respect to scholarship awarding practices that provide preferential treatment based upon race;” and (3) the anticipated amount of time it would take to collect and submit the data requested by the ACTS survey. The public comment period ends Oct. 14, 2025.

In light of this Memorandum and Notice, colleges and universities should be prepared for increased government oversight with respect to their admissions and institutional aid practices as those practices may be reflected in the demographic data collected and reported via IPEDs surveys. Because a stated goal of the Administration is to make the presentation of IPEDS data more accessible, it is likely there will be an increase in complaints from students, parents and/or the public in addition to those initiated by the Department.

Bond will continue to update clients on this matter as the Department of Education implements the Memorandum. If you have any questions about what information needs to be collected in connection with this Memorandum, or what this may mean for your institution, please contact E. Katherine Hajjar, Samuel P. Wiles, any attorney in Bond’s higher education practice or the Bond attorney with whom you have regular contact.

On June 4, 2025, President Donald J. Trump signed a presidential proclamation restricting the entry of foreign nationals from 19 countries into the United States, citing national security, public safety and immigration enforcement concerns. This order was issued pursuant to section 212(f) of the Immigration and Nationality Act, which authorizes the president to suspend the entry of any class of foreign nationals whose presence in the United States would be detrimental to the national interest. The new rules take effect on June 9, 2025, and impose two types of travel restrictions: full entry suspensions and partial entry suspensions.

Full Suspension on Entry

A full suspension applies to both immigrant and nonimmigrant visa categories and prohibits virtually all nationals from the affected countries from entering the United States. This includes visitors, students, workers and individuals seeking permanent residence through an immigrant visa:

Twelve countries are subject to full entry suspensions:

• Afghanistan
• Burma (Myanmar)
• Chad
• Republic of the Congo
• Equatorial Guinea
• Eritrea
• Haiti
• Iran
• Libya
• Somalia
• Sudan
• Yemen

The administration cited a range of concerns for these countries, including terrorism, lack of reliable identity documentation, absence of cooperation in repatriating deportees and high visa overstay rates. For example, Equatorial Guinea had a student and exchange visa overstay rate exceeding 70%, while Chad had a combined overstay rate above 50%, according to the order. In other cases, such as Iran and Afghanistan, the cited reasons included state-sponsored terrorism and the lack of a functioning government capable of ensuring security vetting.

Partial Suspension on Entry

In contrast to the full suspension, a partial suspension blocks specific visa categories, most notably immigrant visas, tourist and business visitor visas (B-1/B-2), and student and exchange visitor visas (F, M and J), while leaving open the possibility of entry through other nonimmigrant visa types, such as certain employment-based or diplomatic categories. However, even in cases of partial suspension, consular officers are instructed to limit the validity period of any visas that are still issued.

Seven countries are subject to partial entry suspensions:

• Burundi
• Cuba
• Laos
• Sierra Leone
• Togo
• Turkmenistan
• Venezuela

The Proclamation Does Not Make Anyone Currently in the United States Deportable

Importantly, the entry restrictions apply only to foreign nationals from the listed countries who are outside the United States as of June 9, 2025, and do not already have valid visas. Foreign nationals lawfully present in the United States on valid visas or valid status (such as F-1 students, H-1B employees or green card holders) are not affected in terms of deportability solely because of this proclamation. They may continue living and working in the United States in accordance with the terms of their existing status.

Individuals with Valid Visas Should Avoid International Travel

Even though the proclamation states that it applies only to individuals who are outside the United States and do not have a valid visa as of June 9, 2025, individuals from the listed countries should avoid international travel. Reentry to the U.S. is not guaranteed, even with a previously valid visa, because the use of that visa after June 9 may trigger a new entry determination under INA § 212(f). Customs and Border Protection (CBP) officers may interpret the proclamation as grounds to deny admission based on visa category or national security concerns. Consular officers may also restrict or cancel visa validity in light of the proclamation. Individuals risk being denied boarding, refused entry at the port of entry or having to qualify for an exception or waiver to return. Employers, students and other affected individuals should consult immigration counsel before departing the United States.

Change and Adjustment of Status

Additionally, the proclamation does not bar the United States Citizenship and Immigration Services (USCIS) from processing change of status or adjustment of status applications for individuals who are already lawfully present in the United States. Because the proclamation is issued under INA § 212(f), which governs admission into the United States from abroad, it does not directly apply to internal immigration benefits adjudicated by USCIS. A change of status (e.g., from F-1 to H-1B) or an adjustment of status to permanent residence (green card) does not involve a new entry and is therefore outside the scope of the proclamation’s restrictions. While USCIS retains general discretion in adjudicating such requests, it cannot deny an application solely on the basis of the proclamation or the applicant’s nationality. However, individuals who change status within the United States may face barriers to reentry if they travel abroad, as the proclamation would then apply at the visa issuance or inspection stage.

Exceptions

While the proclamation imposes sweeping restrictions, it also includes limited exceptions. These include lawful permanent residents (green card holders), dual nationals traveling on passports from non-restricted countries, diplomats, certain family-based immigrant visa applicants with strong documentation, adoptions, U.S. government employees and their families under special visa programs, Afghan special immigrant visas and individuals seeking entry for national interest or humanitarian reasons. Notably, the proclamation does not apply to refugees already admitted to the United States or to those granted asylum, nor does it preclude new asylum or humanitarian claims filed in accordance with U.S. and international law.

Exception for Athletes and Sports-Related Entrants

The proclamation also allows for case-by-case exceptions for professional athletes and essential personnel traveling to the United States to participate in major sporting events, as determined by the Secretary of State. This exception may include players, coaches, medical staff, other critical team members – and their immediate relatives – who are competing under the auspices of recognized leagues, tournaments or international governing bodies. Applicants must demonstrate the significance of the event and the necessity of their presence, and any exception is subject to consular or CBP discretion. Affected individuals should coordinate closely with sponsoring organizations and immigration counsel to ensure timely and well-documented requests.

Future Developments

The proclamation directs an initial review period of 90 days during which the Secretary of State, in coordination with the Attorney General, Secretary of Homeland Security and Director of National Intelligence, must identify measurable steps that each listed country can take to improve its information-sharing practices and security protocols. This 90-day window is intended to allow the listed governments to engage with the United States and potentially qualify for waivers or modifications of the restrictions based on their response.

Following the initial review, the proclamation mandates a formal reassessment of the list every 180 days. Countries may be removed if they demonstrate meaningful progress in areas such as identity verification, cooperation in repatriation, sharing of criminal or terrorist information and reliability of travel documents. Conversely, other countries may be added to the list if they are found to have deficient vetting practices or pose similar security concerns. The Secretary of State is also instructed to maintain ongoing diplomatic engagement with listed countries to provide guidance and support for compliance with U.S. vetting standards.

Conclusion

This proclamation demonstrates a renewed emphasis on country-specific entry restrictions and enhanced pre-screening procedures in U.S. immigration policy. Foreign nationals from the listed countries, along with U.S. petitioners and sponsors, should seek immediate legal counsel to determine whether existing petitions or visa applications will be affected and whether any exemptions or waiver processes may apply.

If you have questions about how this proclamation may impact your case or your organization, please contact our immigration practice for individualized guidance.

On April 24, 2025, two U.S. District Courts issued Orders finding the U.S. Department of Education (DOE)’s Feb. 14, 2025 “Dear Colleague” Letter (DCL) to be unlawful and narrowly restricting the DOE’s enforcement of the DCL. The DOE’s ability to enforce the DCL is in a holding pattern, and it will likely face additional challenges. This is a developing issue that will not have a clear resolution any time soon.

The New Hampshire Preliminary Injunction

The U.S. District Court for the District of New Hampshire granted a request for a preliminary injunction in National Education Association, et al. v. United States Department of Education, effectively preventing DOE from enforcing its Feb. 14, 2025 DCL against the “[P]laintiffs, their members, and any entity that employs, contracts with, or works with one or more [P]laintiffs or one or more of [P]laintiffs’ members.” 

The DCL, which was issued pursuant to the Jan. 21, 2025 Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” asserts that many educational institutions have “embrace[d] … pervasive and repugnant race-based preferences and other forms of racial discrimination” in “every facet” of their operations, and have “toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices under the banner of [Diversity, Equity, and Inclusion] DEI .” The DCL makes clear that institutions that continue to advance “illegal DEI,” (which is not defined in the DCL or the Executive Order)” will jeopardize their receipt of federal funding, including federal financial aid.   

In March of 2025, the National Education Association (NEA) and the American Civil Liberties Union (ACLU) — joined by the NEA-New Hampshire, the ACLU affiliates of New Hampshire and Massachusetts, and the Center for Black Educator Development (collectively the “Plaintiffs”)—filed a lawsuit in federal court requesting preliminary injunctive relief to prevent the DOE’s enforcement of this policy while the case is litigated. In this Order, the Court found that the Plaintiffs had shown that the DCL was so vague that it denied due process, suppressed legitimate speech in violation of the First Amendment, and violated the Administrative Procedure Act (APA) by not following the notice and comment process for rulemaking, which findings were sufficient for the Court to grant a preliminary  injunction. 

However, the Court, noting that nationwide injunctions, particularly nationwide preliminary injunctions, have recently received sharp criticism, including from members of the U.S. Supreme Court, did not issue a nationwide injunction, as the Plaintiffs had argued, but also did not limit the injunction to the Plaintiffs as requested by the government, as noted above. While this Order does not prevent the DOE from enforcing the DCL upon any institution or entity outside of this limited scope, it could very well serve as the template for similar orders across the country. On May 13, 2025, the parties agreed to a briefing schedule regarding competing motions to dismiss. Assuming it is adopted, motions to dismiss will be fully briefed by the end of July 2025. 

The Maryland Temporary Stay

On the very same day as the New Hampshire decision, the U.S. District Court for the District of Maryland issued a “temporary stay” in a substantively similar case brought by the American Federation of Teachers and its Maryland affiliate, as well as the American Sociological Association, and a Eugene, Oregon School District. American Federation of Teachers, et al., v. Department of Education, et al. This temporary stay will prevent the DOE from enforcing the objectionable provisions of the DCL and its implementing FAQs that go beyond existing law so as to “preserve status or rights pending conclusion of the review proceedings,” without precluding the DOE from enforcing any policy within its existing legal authority. While the Maryland Court’s temporary stay is broader than the New Hampshire Court’s injunction in that it applies nationwide, it recognizes that during the litigation the DOE may undertake enforcement actions in accordance with existing law.  As with the New Hampshire case, the parties recently agreed to a briefing schedule to file competing motions to dismiss. The Court adopted the joint proposal, and the motions are scheduled to be fully briefed by the end of July 2025. 

Takeaways

While these grants of temporary relief are a setback for the DOE, which has not appealed these decisions, the DOE will certainly continue to enforce its agenda wherever it can. Even if the courts ultimately strike down most or all of the DCL and its implementation, the DOE could move to clarify the regulations via notice and comment rulemaking, which typically takes months or even years to complete. All of this means the path forward in this area is still uncertain, which makes consultation with legal counsel to assess the impact of these developments on your particular institution imperative. 

Bond attorneys are following these, and related legal developments, closely. If your institution would like further guidance, please reach out to an attorney in our higher education practice or the Bond attorney with whom you are regularly in contact.

On May 5, 2025, the Department of Education (ED) released a “Request for Institutions to Provide Repayment Information to Former Students to Prevent Defaults” (GEN-25-19). Noting that “only 38% of Direct Loan and Department-held Federal Family Education Loan Program borrowers are in repayment and current on their student loans,” ED estimates that “almost 25% of the entire portfolio is either in default or a late stage of delinquency.” Although the Department paused its requirement that students make payments on their defaulted federal student loan debt in March of 2020 due to the COVID-19 pandemic, ED resumed collection of defaulted student loans on Monday, May 5, 2025, and is asking institutions whose students have incurred federal student loan debt to contact those students who have student loan debt, particularly those who are in default. These communications must be made in the next few weeks: the Secretary has set a deadline of June 30, 2025.

Communications to Students

ED is tasking institutions with “providing clear and accurate information about repayment to borrowers through entrance and exit counseling,” and states that colleges and universities are responsible for “disclosing annual tuition and fees and the net price to students and their families on the costs of a postsecondary education.” Conceding that higher education institutions have provided “direct advice and counsel to students regarding their borrowing,” ED warns that “institutions must refocus and expand these efforts as pandemic flexibilities come to an end.”

The Secretary is directing institutions to provide the following information to all borrowers who have not been enrolled at the institution since Jan. 1, 2020, and for whom they have contact information: 

• Remind the borrower that he or she is obligated to repay any federal student loans that have not been repaid and are not in deferment or forbearance;
• Suggest that the borrower review information on StudentAid.gov about repayment options; and 
• Request that the borrower log into StudentAid.gov using their StudentAid.gov username and password to update their profile with current contact information and ensure that their loans are in good standing. 

ED requires that institutions include all three of the bulleted information statements above in the institution’s notice to borrowers.

The Department expects this outreach be performed no later than June 30, 2025 and suggests that institutions “focus their initial outreach on students who are delinquent on one or more of their loans in order to prevent defaults.” A future communication from ED will provide assistance to institutions on how to identify and communicate with those borrowers.

A press release posted on April 21, 2025 stated: “There will not be any mass loan forgiveness.” It also stated that “Later this summer, ED will send required notices beginning administrative wage garnishment” for those borrowers in default.

Impact of Cohort Default Rates (CDR)

ED’s announcement reminds colleges and universities that Section 435 of the Higher Education Act, which governs federal student aid programs, provides that institutions “will lose eligibility for federal student assistance, including Pell Grants and federal student loans, if their CDR exceeds 40% for a single year or 30% for three consecutive years.” Because the repayment pause on student loans ended in Oct. 2023, “CDRs published in 2026 will include borrowers who entered repayment in 2023 and defaulted in 2023, 2024 or 2025.” Furthermore, says ED, “those borrowers whose delinquency or default status was reset in Sept. 2024 could enter technical default status / be delinquent on their loans for more than 270 days beginning in June and default this summer.” Therefore, it is in the institutions’ interest to contact former students in order to minimize the college or university’s cohort default rate in order to avoid being barred from the federal student assistance program.

Publication of an Institution’s Student Loan Default Rate

The May 5th communication reminds institutions that ED has data on the repayment status of each borrower as well as that borrower’s institution(s) attended. The Department will calculate non-repayment rates for every college and university that participates in the federal student aid program and will publish this information later in May on the Federal Student Aid Data Center website.

ED has promised to announce further requirements and information for institutions participating in the federal student assistance program. Bond will provide updates as this additional information is released by ED. Please contact a Bond attorney in the higher education practice or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation.