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.

On April 23, 2025, President Trump issued an Executive Order, “Reforming Accreditation to Strengthen Higher Education.” This Executive Order would require agencies that currently accredit colleges and universities to overhaul their missions, their processes, and their areas of focus in order to meet the requirements of this most recent Executive Order. It would also provide for the creation of new accrediting organizations that would compete with them.

For decades, the federal government has relied upon certain private associations to determine whether colleges and universities that participate in the federal government’s Title IV student financial aid programs—and that includes virtually every institution of higher education in the United States—meet certain standards of quality. The Higher Education Act,[1] a federal law, provides that certain accreditation agencies may be relied upon to certify that a college or university is approved to participate in the federal student assistance program, and that its students who qualify may receive federal grants or loans. The law requires the Secretary of Education to publish a list of approved accrediting agencies. General accrediting associations review an institution as a whole, and are commonly grouped into six individual organizations that evaluate colleges and universities in a particular geographic area. Specialized accrediting agencies typically accredit specific programs at institutions of higher education, such as medical schools, graduate programs in clinical psychology, or law schools. Many states also have accreditation requirements for certain professions that require licensure, such as medicine, nursing, or law. Institutions that do not meet the accrediting agency’s standards may become ineligible for participation in the federal student aid program.

In prior years, both general and specialized accrediting associations have incorporated requirements that institutions promote diversity, equity and inclusion (DEI) in their curriculum and institutional policies. Until recently, institutions that sought accreditation, either for the institution as a whole or for an academic program, were required to comply with the accrediting agency’s DEI standards. That may be about to change.

Summary of the Executive Order[2]

The Executive Order accuses accreditors of failing to ensure high quality education by routinely approving “low-quality institutions,” resulting in low undergraduate graduation rates, increased student loan debt, and degrees that have little economic value. It further states that some accreditors have abused their authority and violated nondiscrimination laws by conditioning higher education institutions’ access to federal funds on the adoption of “DEI-based standards of accreditation.”

In an effort to “[hold] accreditors accountable for unlawful actions,” the Executive Order directs the Secretary of Education to monitor, deny, suspend, or terminate the accreditation recognition of accreditors that require institutions seeking accreditation “to engage in unlawful discrimination in accreditation-related activity under the guise of [DEI] initiatives.”

The Executive Order further directs the Secretary of Education and the Attorney General to investigate and take action to terminate unlawful discrimination by law schools and medical schools that engage in such practices, advanced by the American Bar Association’s Council of the Section of Legal Education and Admissions to the Bar (Council), the sole federally recognized accreditor for law degree programs, and the Liaison Committee on Medical Education (Committee), the sole federally recognized accreditor of Doctor of Medicine degree programs. Following the investigation, the Secretary of Education must determine whether to suspend or terminate the Council’s and Committee’s federal accreditation status.

The Executive Order sets forth the following principles that the Secretary of Education must assess in evaluating accreditors:

1. Higher education institutions must provide high quality, high value academic programs free from unlawful discrimination;
2. Barriers are reduced that limit institutions from adopting practices that advance credential and degree completion and encourage new models of education;
3. Accreditors must ensure that institutions support and prioritize intellectual diversity among faculty to advance academic freedom, intellectual inquiry, and student learning;
4. Accreditors cannot use their roles under Federal Law to force institutions to violate State laws unless those laws violate the Constitution or Federal law; and
5. Accreditors cannot engage in practices that lead to credential inflation and unnecessary additional costs for students.

To advance the stated principles, the Secretary of Education is tasked with:

1. Recognizing new accreditors to increase competition and accountability “in promoting high-quality, high-value academic programs focused on student outcomes;”
2. Mandating that institutions use program-level student outcome data that improves results, without reference to race, ethnicity, or sex;
3. Providing accreditors with noncompliance findings from investigations of member institutions by the Office for Civil Rights under Title VI or Title IX;
4. Launching an experimental site to accelerate innovation and improve accountability “by establishing new flexible and streamlined quality assurance pathways for higher education institutions that provide high-quality, high-value academic programs;”[3]
5. Enhancing the accreditor recognition review process using technology;
6. Streamlining the process for institutions to change accreditors; and
7. Updating the accreditation handbook  to ensure that the reauthorization and recognition process is transparent and efficient.

Implications of the Executive Order for Institutions of Higher Education

Colleges and universities typically undergo review by either institutional or special accrediting bodies (or both) periodically, and preparation for reaccreditation campus visits may take years. Should those accrediting agencies be replaced with other agencies with different agendas and new requirements, these changes could require alterations in the programs offered by the college, its emphasis on and resources devoted to student persistence and graduation rates, and its focus on enhancing diversity and inclusion. For example, the Executive Order has already identified several specialized accrediting agencies that it states have maintained their emphasis on DEI, which the Trump Administration maintains is unlawful discrimination. It seems likely that a result of the Executive Order will be the creation of new accrediting agencies with agendas that differ from those of the traditional focus of the general accrediting agencies; it is also possible that some of the general agencies will be derecognized, resulting in the potential loss of Title IV funds by colleges they have accredited unless the college finds a new accreditor and is able to comply with its requirements promptly. Colleges will need to monitor the status of their traditional accreditors and be flexible in identifying and complying with new standards. Given the Executive Order’s focus on the return on investment of the college’s academic programs and its emphasis on raising institutions’ graduation rates, shifts in an institution’s curricular priorities may be considered necessary in order to meet new accreditation standards.

At this very early point, it is unclear how much change this new Executive Order will require institutions of higher education to make, or whether some will lose access to Title IV student aid funds, which would have a devastating effect on many institutions and their students. Bond attorneys are watching these developments closely and will continue to provide advice as the implications of this Executive Order become more clear.

[1] Higher Education Act of 1965 and its amendments, 20 U.S.C. secs. 11070 et seq.

[2] The White House, Reforming Accreditation to Strengthen Higher Education (Apr. 2025):https://www.whitehouse.gov/presidential-actions/2025/04/reforming-accreditation-to-strengthen-higher-education/?utm_campaign=10294803-Policy%20Alerts&utm_medium=email&_hsmi=358408225&utm_content=358408225&utm_source=hs_email; See also The White House, Fact Sheet: President Donald J. Trump Reforms Accreditation to Strengthen Higher Education (Apr. 2025): https://www.whitehouse.gov/fact-sheets/2025/04/fact-sheet-president-donald-j-trump-reforms-accreditation-to-strengthen-higher-education/.

[3] The Higher Education Act provides that “The Secretary is authorized to select institutions for voluntary participation in a Quality Assurance Program that provides participating institutions with an alternative management approach through which individual schools develop and implement their own comprehensive systems, related to processing and disbursement of student financial aid, verification of student financial aid application data, and entrance and exit interviews, thereby enhancing program integrity within the student aid delivery system. 20 U.S.C. 1094a(b)

On Feb. 21, 2025, the federal district court for the District of Maryland issued a preliminary injunction partially enjoining two of President Trump’s executive orders: Ending Radical and Wasteful Government DEI Programs and Preferencing (Jan. 20, 2025)(J20 Order) and Ending Illegal Discrimination and Restoring Merit-Based Opportunity (Jan. 21, 2025)(J21 Order).

The Court’s ruling focused on three provisions of the executive orders:

• The “Termination Provision” of the J20 Order directing federal agencies to terminate “equity-related” grants and contracts;
• The “Certification Provision” of the J21 Order directing federal agencies to require federal contractors and grantees to certify under penalty of the False Claims Act that they do not operate programs promoting DEI that violate discrimination laws; and
• The “Enforcement Threat Provision” of the J21 Order directing the Attorney General to take actions to “deter DEI programs or principles . . . that constitute illegal discrimination or preferences,” including drafting a report recommending actions and identifying corporations, higher education institutions or certain other entities for “civil compliance investigations.”

The plaintiffs in the case are the National Association of Diversity Officers in Higher Education, the American Association of University Professors, Restaurant Opportunities Centers United, and the Mayor and City Council of Baltimore. The Court ruled that the plaintiffs had demonstrated a likelihood of prevailing on their claims that the J20 and J21 executive orders suffered from an unconstitutional vagueness and that they abridge freedom of speech, among other infirmities. The Court also found that the plaintiffs had demonstrated that the plaintiffs would be irreparably harmed if the executive orders were to be implemented while further judicial proceedings are held to ultimately determine the legality of the executive orders. The Court went on to find that a nationwide injunction was appropriate.

Therefore, the Court issued a preliminary injunction preventing federal agencies from:

• Freezing, terminating or changing the terms of any existing grants or contracts, on the basis of the Termination Provision in the J20 Order;
• Requiring any grantee or contractor to make any “certification” or other representation pursuant to the Certification Provision; and
• Bringing any “False Claims Act enforcement action, or other enforcement action,” pursuant to the Enforcement Threat Provision.

Notably, the scope of the injunction issued by the Court was not as all-encompassing as the plaintiffs had requested. The Court expressly declined to enjoin the Attorney General from preparing a report of recommendations on strategic steps to “encourage the private sector to end illegal discrimination and preferences, including DEI” or from engaging in investigations of potential violations federal anti-discrimination laws pursuant to the Enforcement Threat Provision.

As a result of the Court’s ruling, there is less immediate concern that federal grants or contracts will be interrupted on the basis that they fund “equity-related” activities or that a grantee or contractor will be subject to the threat of the False Claims Act for engaging in DEI programs or policies. On its face, the scope of the Court’s ruling is quite broad, as it prevents not only False Claims Act actions but also “any other enforcement action.”

The ruling is not a final ruling and could be reversed on appeal or altered by the court itself, in whole or in part, as the matter proceeds. Thus, issues raised by the J20 and J21 executive orders are worth reviewing, although some of the immediacy is removed at this time.

In addition, one should not assume that the Court’s injunction addresses all legal concerns with respect to DEI programs and policies currently in place. As a general matter, an entity engages in unlawful discrimination when it makes decisions based on an individual’s race, color, ethnicity, sex or various other protected characteristics. Despite the Court’s preliminary injunction, there remains the risk of liability based on illegal discrimination, even if the illegal discrimination resulted from well-intentioned efforts to increase diversity. Stated another way, some programs and policies may have had compliance issues before the J20 and J21 executive orders and those issues are not affected by the preliminary injunction and should be assessed and addressed if warranted. Additionally, there remains uncertainty about the interplay between the issued injunction with the Feb. 14, 2025 Dear Colleague Letter (DCL) from the Department of Education. While the DCL is largely based on principles that are articulated in the now hobbled J20 and J21 executive orders, it is not clear that the Court’s injunction extends to all aspects of the recent DCL.

As before this latest development, DEI programs, policies and initiatives should be reviewed to ensure their compliance with existing anti-discrimination law. Close attention should also be paid to the rapidly occurring developments against the backdrop of enforcement actions by both federal and state officials, funding and reimbursement implications of the programs and the possibility of private litigation.

Bond continues to follow these and related developments closely. 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.

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). Among other things, the EO encouraged enforcement action against organizations or institutions sponsoring such programs, and directed the Attorney General and the Secretary of Education to issue guidance to institutions of higher education that receive federal grants or participate in Title IV FSA programs regarding measures and practices required to comply with the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA).

On Feb. 14, 2025, some initial guidance was issued, in the form of a Dear Colleague Letter (DCL) from the federal Department of Education, Office for Civil Rights. The February 14 DCL provides a statement of the position of the Department of Education (Department) on the “nondiscrimination obligations of schools and other entities that receive federal financial assistance from the Department.” The DCL “explains and reiterates” the Department’s view of “existing legal requirements under Title VI of the Civil Rights Act of 1964, the Equal Protection Clause of the United States Constitution, and other relevant authorities.”

The DCL states that discrimination on the basis of race, color and national origin has been and will continue to be illegal. The DCL discusses the Supreme Court’s decision in SFFA and states that, although the decision addressed college admissions, the holding of SFFA applies more broadly, “If an educational institution treats a person of one race differently than another person because of that person’s race, the educational institution violates the law.”

The DCL expands upon the Department’s view of this principle:

Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.

The DCL takes a position on several issues that may have been features of some post-SFFA DEI programs. For example, the DCL states that a “school may not use students’ personal essays, writing samples, participation in extracurriculars, or other cues as a means of determining or predicting a student’s race and favoring or disfavoring such students.” This statement references the SFFA decision which states that “universities may not simply establish through application essays or other means the regime we hold unlawful today.” In this regard, the use of these items in ways that do not predict an applicant’s race or favor or disfavor an applicant based on race does not appear to violate the Department’s interpretation of SFFA.

The DCL also states that “relying on non-racial information as a proxy for race and making decisions based on that information, violates the law.” Again, the facts would seem to matter greatly here as to what is a proxy for protected characteristics versus what criteria are lawful.

The DCL states that “It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.” Elimination of criteria not tied to race – for instance, not using standardized tests post-pandemic after proceeding without them during the pandemic years – should remain permissible under the DCL unless tied to achieving certain demographic results.

The DCL also calls into question DEI program features that:

[P]reference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.

The DCL concludes with the following summary of the Department’s position:

The Department intends to take appropriate measures to assess compliance with the applicable statutes and regulations based on the understanding embodied in this letter beginning no later than 14 days from today’s date, including antidiscrimination requirements that are a condition of receiving federal funding.

All educational institutions are advised to: (1) ensure that their policies and actions comply with existing civil rights law; (2) cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and (3) cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by institutions in an effort to circumvent prohibited uses of race. Institutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.

The DCL requires immediate analysis by educational institutions. The first area noted in the advice section – ensuring that polices comply with the existing civil rights laws – should be undertaken if such an analysis has not been conducted recently. The SFFA decision, the Trump Administration executive orders, and this DCL letter should all be considered and taken into account in that analysis. The second area noted – use of proxies for race – is simple to state but more nuanced and complicated to analyze, as the law has shifted for higher education institutions based on Supreme Court interpretations and institutional approaches and rationales have also likely shifted over time. The third area – use of third parties – is less clear as to scope and the Department’s interpretation, and its impact on current practices. This will require a case-by-case assessment of the program features and their history and usage, as well as consideration of the DCL’s positions and the underlying law.

We anticipate that some of the interpretations of current law as set forth in this DCL may be subject to legal challenge. This DCL arrives in the same week that several states’ Attorneys General asserted a different interpretation of what is permitted by federal law than that articulated in the Executive Order underlying the DCL. Given the flurry of activity, we recommend prompt consultation with legal counsel to assess the impact of these developments on your institution.

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 Feb. 5, 2025, President Trump signed an Executive Order, “Keeping Men Out of Women’s Sports.”  The Executive Order states that “[i]n recent years, many educational institutions and athletic associations have allowed men to compete in women’s sports,” a situation that the Order states has denied women and girls equal athletic opportunity.

The Executive Order states:

“Therefore, it is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy. It shall also be the policy of the United States to oppose male competitive participation in women’s sports more broadly, as a matter of safety, fairness, dignity, and truth.”

This Executive Order follows another order signed by the President on Jan. 20, 2025, “Defending Women From Gender Ideology Extremism And Restoring Biological Truth To The Federal Government,” which sets more broadly the federal government’s position that there are two immutable biological binary sexes, male and female, and that the Executive Branch will enforce all sex-protective laws accordingly.

Effective Feb. 5, 2025, the Executive Order directs the Secretary of Education to:

• Enforce Title IX of the Education Amendments of 1972 to “affirmatively protect all-female athletic opportunities and all-female locker rooms,” including through regulations and policy guidance; and
• Prioritize Title IX enforcement actions against educational institutions and athletic institutions composed of or governed by educational institutions that deny women an equal opportunity to participate in athletics by “requiring them, in the women’s category, to compete with or against or to appear unclothed before males.”

The Executive Order also directs all executive departments and agencies to review grants and educational programs and “where appropriate” to “rescind funding to programs that fail to comply with the policy established in this order.”

The Executive Order may be challenging for educational institutions, particularly those with transgender female students currently participating on girls and women’s teams. Additionally, in jurisdictions with state or local laws, including the State of New York, that extend rights based on gender identity, the Executive Order conditions federal funding on actions that may be inconsistent with state and local laws. College and university leadership should consult with legal counsel about the impact of this Executive Order on their athletic programs.

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.

This week, Gov. Kathy Hochul signed the Student Lifeline Act amending the New York Education Law to require that degree-granting higher education institutions educate students, faculty and staff about New York’s 9-8-8 Suicide and Crisis Lifeline.

Read More >> New York Requires 9-8-8 Suicide and Crisis Lifeline Information Shared and Added to College Student ID Card

A federal judge in Texas has issued a nation-wide injunction blocking the Education Department’s new minimum clock-hour rule (Proposed Rule) for career prep programs, which was scheduled to go into effect on July 1, 2024.

Read More >> Federal Judge Blocks Education Department’s New Minimum Clock-Hour Rule

Recent resolution agreements between the U.S. Department of Education’s Office for Civil Rights (OCR) and the University of Michigan (U-M) and the City University of New York (CUNY) offer valuable lessons for colleges and universities nationwide. These agreements, addressing complaints of discrimination based on shared Jewish, Israeli, Palestinian, Arab, Muslim, and/or South Asian ancestry and/or the association with these national origins/ancestries, reflect OCR’s evolving standards for compliance with Title VI of the Civil Rights Act of 1964. Higher education institutions should heed these lessons to avoid and/or neutralize regulatory scrutiny.

Read More >> OCR Resolves Title VI Complaints Against Two High-Profile Universities

On May 30, the U.S. District Court for the Southern District of New York granted New York University’s (NYU) motion to dismiss in a lawsuit[1] from a first-year law student claiming that NYU School of Law’s process for selecting students to serve as editors of its Law Review gives preference to women and minorities in violation of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. The complaint was dismissed without prejudice on two grounds: 1) lack of subject-matter jurisdiction; and 2) failure to state a claim. This lawsuit is the first legal challenge to a law review diversity policy following the U.S. Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 600 U.S. 181 (2023), which struck down race-based admission processes at colleges and universities.

Factual Background

The complaint filed in October 2023 notes that prior to the Supreme Court’s decision in SFFA, the NYU Law Review would invite 50 students from the rising second-year class to join the academic journal as editors. Twelve of the 50 spots were filled by the Law Review’s Diversity Committee, which required applicants to submit personal statements and gave them the option to submit resumes. The Diversity Committee selected students in consideration of factors that included (but were not limited to) the applicant’s “race, ethnicity, gender, sexual orientation, national origin, religion, socio-economic background, ideological viewpoint, disability, and age.”

According to the plaintiff, a student identified as “John Doe,” NYU Law Review changed its website after the SFFA decision by removing any explicit reference to diversity in the membership-selection process, but it is clear “that ‘diversity’ remains a prime consideration in the selection of members.” Doe alleges that the Law Review currently requires applicants to submit a “statement of interest” for consideration by the academic journal’s Selection Committee and gives students the option to also submit a resume.

Doe claims that as a heterosexual white male, the application process will subject him to race and sex discrimination and deny him “an equal opportunity to compete for membership” when he applies for Law Review in the summer of 2024. Specifically, Doe asserts that the Law Review uses statements of interest and resumes to “give preferential treatment to women, non-Asian racial minorities, homosexuals, and transgender people when selecting its members.”

The Court’s Reasoning

First, U.S. District Judge Vernon S. Broderick determined that Doe lacked the necessary standing to bring his lawsuit. The court explained that Doe’s allegations concerning what information students may share with the Law Review in their applications or how that information may be used are speculative and cannot confer standing upon Doe. The court further stated that the complaint is “devoid of any factual support” for Doe’s arguments, as it “does not plead, in other than a conclusory way, how the Law Review is discriminating now or will discriminate in the future.” Doe’s failure to plead factual allegations of a discriminatory selection process implemented by the Law Review established no injury-in-fact, and therefore no basis for standing or the court’s exercise of subject-matter jurisdiction over the case.

Even if Doe had standing to bring his suit, the court held that the complaint would still be dismissed for failure to state a claim under Title VI and Title IX because Doe’s claim lacked “facts supporting his allegation that NYU is giving and intends to give preferential treatment to certain minority groups.” The court added that the Law Review’s commitment to diversity pre-SFFA, and even post-SFFA, is not unlawful:

"Considering the lack of any language in the selection policy demonstrating a preference for students of a protected class and the absence of any allegations supporting the inference that the selection policy would result in preferential treatment of such students, I cannot conclude that the Law Review’s continued commitment to diversity gives rise to a plausible inference of unlawful conduct."

In effect, this SDNY opinion reinforces the holding in the Supreme Court’s decision in SFFA to expressly acknowledge that universities may consider an individual’s lived experiences or socio-economic challenges in its admission processes, as long as it does not do so based on race or any other protected characteristic alone.

As of the date of this memo, it is unclear whether this case will be appealed to a higher court. Bond will continue to closely monitor this and related affirmative action cases for updates and bring them to you in a timely manner.

If you have any questions about the implications this case may have for your institution, please contact any attorney in Bond’s higher education practice or the attorney at the firm with whom you are in regular contact.

*Special thanks to Associate Trainee Camisha Parkins for her assistance in the preparation of this memo. Camisha is not yet admitted to practice law.

[1] John Doe v. New York University, 1:23CV10515-VSB-SN (S.D.N.Y. 2023).

We previously reported here that institutions of higher education (IHE) located in New York State are required to submit a copy of all written rules and procedures necessary to demonstrate compliance with Article 129-A and Article 129-B of the New York State Education Law to the New York State Education Department (NYSED or Department) for review. As promised, NYSED has provided more detailed information on how to submit these materials. All materials must be submitted by July 1, 2024.

Read More >> New Submission Details for Articles 129-A and 129-B Decennial Reporting

In the midst of antiwar protests and a rise in antisemitic incidents at institutions of higher education (IHE) across the country, the Office for Civil Rights (OCR) issued a Dear Colleague Letter (DCL) on May 7, 2024 reiterating its commitment to enforcing Title VI of the Civil Rights Act of 1964.

Read More >> Navigating Compliance with OCR’s New Guidance on Title VI