Public entities, including public colleges and universities, face near‑term obligations to address and update accessibility standards for all digital materials and web content, including websites, mobile applications and online course materials. In 2024, the Department of Justice (DOJ) finalized rules requiring publicly funded entities, including public colleges and universities, to adhere to the Web Content Accessibility Guidelines 2.1, Level AA, for compliance with Title II of the American With Disabilities Act (ADA), bringing long‑anticipated clarity to technical expectations regarding digital accessibility. These changes require institutions to review virtually all digital materials that students, employees or the public access online.
WCAG is a widely adopted technical benchmark developed by the World Wide Web Consortium (W3C) that defines how digital content should be perceivable, operable, understandable and robust. The 2.1 Level AA standard, which has been adopted by the DOJ as the ADA standard applicable to public entities, addresses core barriers such as captions for media, keyboard navigation, sufficient color contrast and clear labels and instructions.
The effective date of compliance depends on an institution’s size, as connected to the public entity that the institution is a part of (e.g. a state or county). Institutions connected to governments serving 50,000 or more have a quickly approaching deadline of April 24, 2026, while institutions connected to governments serving a population of less than 50,000 have an extended deadline of April 26, 2027. While these specific compliance obligations and deadlines apply only to public institutions, private institutions also have ongoing general legal obligations to ensure their digital programs and activities are accessible for people with disabilities, including through Titles I and III of the ADA and through Section 504, as well as local analogs. Therefore, while public institutions are focusing acutely on the Title II changes and the specific standards they require, private institutions may also find the regulations instructive in addressing and assessing their own approach to digital accessibility.
Who Is Covered and What’s in Scope for Higher Ed
As outlined above, the rules apply to state and local government entities, including public colleges and universities, community colleges and school districts. Under Title II, obligations extend to the services, programs and activities these institutions provide. Coverage extends to the websites and mobile applications they operate as well as digital services they offer through contracts, licenses or similar arrangements.
In practice, that means institutions must ensure accessibility not only for their websites—and all of the materials, like PDFs and videos they contain—but also for the range of platforms used throughout higher education, such as admissions and financial aid portals, learning management systems and course sites, student information portals, library catalogs and discovery tools, housing and dining systems, athletics and events sites and mobile apps provided on the institution’s behalf must meet the applicable accessibility standard. Institutions are not generally responsible for the entirety of third‑party websites they merely link to for informational purposes, but they are responsible for the accessibility of tools they choose or procure for their own services.
Limited Exceptions
The rules recognize limited exceptions for materials like archived web content, certain preexisting documents, preexisting social media posts, along with truly unaffiliated third‑party content. These carveouts are narrow and primarily turn on when content was created or posted. Examples include retired course sites, digitized archival collections or legacy departmental pages that are not used to access current services. They do not relieve institutions of their ongoing duty to ensure effective communication and equal opportunity. Further, institutions may be able to utilize other exceptions under the ADA, such as an exception for fundamental alterations or undue financial burden. However, such exceptions are narrow and may require robust evaluation and documentation to be relied upon. We recommend that institutions apply all exemptions carefully and document all decisions.
Other Compliance Obligations Continue, Including for Private Institutions
Although public colleges and universities need to address these updated requirements, institutions must not forget that they need to continue to comply with their accessibility obligations under related laws, such as Section 504 of the Rehabilitation Act. As a result, if there is an exemption under the new rule and digital content does not have to meet the WCAG 2.1, Level AA standard, the institution may still need to provide the content to the person in a format that is accessible to them in line with the institution’s already established obligations. Indeed, the U.S. Office for Civil Rights focused on digital accessibility for many years under Section 504 and these standards also apply to private institutions not subject to the Title II regulations. Additionally, any institution receiving federal funds from the U.S. Department of Health and Human Services, whether public or private, is further subject to that agency’s updated Section 504 regulations, which likewise impose specific digital accessibility obligations with a compliance obligation later this spring.
Noncompliance
Public colleges and universities that fail to meet the new digital accessibility requirements risk legal, financial or other consequences. The DOJ enforces Title II and the new rules, and noncompliance may lead to federal investigations, negotiated settlements or consent decrees. In addition to foregoing, institutions may face complaints from students, employees or members of the public, which can result in agency findings or civil litigation.
Practical Compliance Recommendations and Best Practices for Higher Ed
Public colleges and universities designing a compliance plan should evaluate priorities and undertake compliance in steps. Given the pace of online technology development and the proliferation of digital content, digital accessibility is an ongoing compliance issue. Below are some recommended steps:
Identify stakeholders and accountable owners: Create a cross‑functional group of relevant stakeholders, including both campus-wide units (e.g. IT, disability offices, student affairs, provost’s office) along with sufficient representation from schools to address decentralized compliance issues. Designate an individual, such as your ADA/504 coordinator, to help decide on priorities aligned with leadership expectations.
Inventory and prioritize: Catalog websites, apps, files and third‑party platforms and tools (e.g. admissions, learning management, library, student accounts, campus services portals). Flag high‑impact areas and separate archival content.
Remediate systematically: Develop a plan to track compliance, including checks to prevent regression.
Communicate across campus: Ensure that employees responsible for IT functions and content generation across campus are aware of requirements and plans to remediate. Developing a formal policy may be useful in setting a community-wide expectation of compliance and clarify responsibilities in a decentralized environment.
Test early and often: Combine automated scans with manual checks.
Embed compliance into procurement: Work with service providers to require current conformance reports, warranties, remediation SLAs and acceptance testing. Avoid disclaimers that undercut accessibility obligations and make digital accessibility a part of every contract negotiation.
Offer training by role: Provide practical training for different stakeholders, tailored to the types of digital content most frequently created or utilized. Consider reminders about the importance of digital accessibility, particularly at the beginning of each semester.
Create a feedback mechanism: Post an accessibility statement and a way for community members to report issues to ensure they can be addressed promptly. Consider trends in any feedback to inform ongoing efforts.
On March 31, 2026, U.S. District Judge Gerald J. Pappert of the Eastern District of Pennsylvania issued a significant decision enforcing an Equal Employment Opportunity Commission (EEOC) subpoena directed to the University of Pennsylvania (UPenn). Judge Pappert’s decision addresses the EEOC’s authority to obtain names and contact information for employees potentially affected by or witness to alleged antisemitic harassment. The ruling compels compliance with the subpoena, though it includes a limitation barring disclosure of any employee’s affiliation with any specific organization. The decision has potential implications for employers responding to EEOC investigations nationwide.
What the Court Held
The court held that the EEOC may compel production of employee names and contact information relevant to its charge alleging religious discrimination and hostile work environment, so long as UPenn does not reveal any employee’s ties to particular campus groups. In reaching its decision, the court emphasized the U.S. Supreme Court’s instruction to construe “relevance” in the subpoena context generously and rejected constitutional challenges to the demand. Notably, the decision reinforces the generous relevance and low burden standards governing EEOC subpoenas, confirming that courts will order compliance absent a showing of undue burden or clear overbreadth.
Background and Procedural Posture
Facts: The EEOC is investigating allegations that UPenn faculty and staff faced antisemitic harassment, including incidents connected to campus protests after the Oct. 7, 2023 attack in Israel and the ensuing war in Gaza. Unlike data on race and sex, employers are not required to maintain employment data regarding religion. The agency therefore sought evidence of names and contact details for employees associated with campus groups and academic programs “related to the Jewish religion,” staff who filed complaints, attendees of 2024 listening sessions held by the University’s antisemitism task force and recipients of a survey on antisemitism.
Prior Proceedings: After UPenn declined to produce certain categories—particularly contact information for employees whose identification could reveal their Jewish faith or affiliations—the EEOC filed a subpoena enforcement action. At a March 10, 2026 hearing, the court explained that the subpoena met the “low bar” for enforcement and has now granted the EEOC’s application, with a carveout precluding disclosure of affiliations with specific Jewish-related organizations.
Scope: This federal district court order binds the parties in this matter. While not precedential nationwide, it applies well-established Supreme Court standards for EEOC subpoenas and will be persuasive for employers responding to similar requests in other jurisdictions.
Key Takeaways
Legal Standard Clarified: Courts are likely to construe “relevance” to EEOC subpoenas generously and enforce requests for potential victim and witness contact information tied to a facially valid charge, rejecting constitutional challenges absent exceptional circumstances.
Compliance Exposure: Employers may be compelled to produce sensitive employee-identifying information in religion-based harassment investigations; failure to comply may risk enforcement actions and potential sanctions.
State-law Interaction: State privacy or employment laws rarely override federal subpoena obligations; however, employers should ensure awareness of applicable privacy requirements.
Who Is Affected
This decision primarily affects institutions of higher education and other employers facing EEOC investigations into religion-based harassment or hostile work environment allegations, in Pennsylvania and beyond. Employers operating across multiple jurisdictions should assess how local privacy frameworks and existing EEOC guidance intersect with the federal standards applied here.
Open Questions and Next Steps
Open issues include the contours of permissible privacy carveouts (such as limits on disclosing affiliations with specific organizations), the handling of highly sensitive identifiers and how courts will weigh undue-burden arguments tied to assembling contact lists. UPenn may seek further judicial review, and the EEOC may issue associated guidance. Employers should monitor any appellate activity in the case and be on the lookout for agency guidance.
Bottom Line
This decision reinforces the broad scope of the EEOC’s subpoena power and the low bar for the relevance standard governing enforcement. Employers should promptly review protocols and policies on how data on employees are maintained, update documentation where needed and train stakeholders on the applicable legal standards to reduce risk and position themselves for agency scrutiny under this framework.
Higher education institutions across the country are facing a new wave of borrower defense to repayment (BDTR) claims. This recent development comes just as the federal government is working to comply with the final terms of a class action settlement involving the backlog of BDTR claims, and after yet another shift in the BDTR regulatory scheme as a result of the One Big Beautiful Bill Act last year.
BDTR Background
The BDTR system is a federal process that allows borrowers with U.S. Department of Education student loans to request loan cancellation if their school misled them or engaged in misconduct related to their education or loans. Borrowers can apply for relief if they believe their institution made false claims about things like job placement rates, accreditation, program quality or transferability of credits. If a borrower’s claim is approved, the government may forgive some or all of the borrower’s federal student loan debt and potentially refund payments already made, and in certain circumstances may seek reimbursement from the institution. BDTR claims therefore represent a potential source of exposure for institutions to which they are directed.
Regulations implementing the BDTR process have been repeatedly revised by successive federal administrations and therefore the precise scope of the standards that apply to any BDTR claim vary depending on timing. Further complicating the picture has been years of litigation surrounding BDTR, including challenges to the regulations themselves along with challenges to the DOE’s handling of BDTR claims.
Updates on the Sweet Settlement
Notably, in June of 2022, the U.S. Department of Education reached a settlement in the Sweet v. McMahon (formerly Sweet v. Cardona and Sweet v. DeVos) litigation involving pending BDTR claims submitted from Jan. 1, 2015 through the date of the settlement (along with post-settlement, pre-court approval BDTR claims through Nov. 15, 2022). The lawsuit challenged the way the Department dealt with borrower defense applications, including delays in issuing final decisions and the denial of certain applications.
Under the settlement, borrowers who attended specific schools the Department determined were “highly suspect” for misconduct (known, per the settlement, as “Exhibit C” schools) had their loans fully discharged. A second group of borrowers who submitted BDTR claims from 2015 through 2022 were provided with defined deadlines tied to the date of their original BDTR claim by which the Department would render a decision. If the Department failed to render a decision by the set deadlines, borrowers would be entitled to certain relief under the settlement, effectively discharging their debt. The settlement does not address recoupment from institutions. However, the Department represented in the course of the litigation that it would not seek recoupment from institutions for claims covered by the settlement, at least as to “Exhibit C” schools – a process that would, if deployed, have questionable legality, given the settlement’s procedures were a negotiated resolution outside of the regulatory procedural requirements for recoupment from schools.
In December of 2025, the U.S. District Court for the Northern District of California denied the Department’s request for an 18-month extension of the January 2026 deadline for post-class claims, citing nearly 200,000 remaining applications and a lack of personnel and funding to review them. The motion was denied, holding in place the Jan. 28, 2026 deadline for student claims arising from loans at “Exhibit C” schools, but approving a modest extension to April 15 to adjudicate the remaining claims. In rendering the Court’s decision, District Judge William Alsup questioned why the request for an extension was made only six weeks before the original deadline, given the Department’s knowledge of the number of pending applications since the settlement was reached.
Following Judge Alsup’s retirement and the case’s reassignment, the Department filed in late January 2026 a second motion for relief from the deadline. This motion was also denied, citing no meaningful progress since the last motion was denied and no new developments to justify the lengthy 18-month extension; as of January 22, the Department had adjudicated less than 2,000 of the nearly 200,000 claims that were outstanding at the time of the December ruling. The Department has since appealed to the Ninth Circuit Court of Appeals and sought a stay of the district court’s ruling, which has not been ruled on as of March 12, 2026.
A New Wave of BDTR Applications and More Regulatory Shifts
As the government litigates its appeal and presumably continues to process the 2022 claims under the settlement, institutions across the country in early March 2026 have begun to see a new wave of BDTR claims released by the Department of Education. These claims appear to have been submitted after Nov. 22, 2022 and therefore fall outside the scope of the Sweet settlement. Notice from the Department is typically sent by email to an institution’s president and financial aid leadership, though institutions can check for claims directly on the Department’s Common Origination & Distribution website.
These claims will likely be adjudicated under existing regulatory frameworks, though litigation persists on this BDTR front as well. Although the BDTR regulations were updated during the Biden administration, these changes were enjoined by a court order in 2024 and did not take effect. And since that time, the One Big Beautiful Bill Act delayed implementation of the Biden-era 2022 regulations, moving the effective date of the regulations by limiting their application to loans that have an origination date after July 1, 2035. This change effectively ended certain aspects of the litigation over the 2022 regulations and revived the BDTR regulations put into effect by the first Trump administration in 2019, which applied to loans disbursed on or after July 1, 2020. But on March 6, 2026, an amended complaint in the suit challenging the 2022 regulations has raised claims about both the 2022 regulations – arguing that they have been merely delayed – along with claims related to the 2019 regulations’ lawfulness. Adding to the regulatory morass are the 2016 regulations, which still apply to loans made between July 1, 2017, and July 1, 2020, and the 1994 regulations for all loans disbursed prior to July 1, 2017.
Next Steps for Colleges and Universities
Institutions responding to newly received complaints will look to the applicable regulations to inform their response, but given the pending litigation involving the 2019 regulations, uncertainty may for some time hang over how the Department will be able to address BDTR claims. Notwithstanding the uncertainty, it is still advisable for institutions to give timely attention to any claims they receive and respond prior to the applicable deadline (typically 60 days after receipt), among other reasons to bolster a defense against the possibility of the Department granting claims and seeking institutional reimbursement.
Bond continues to monitor the BDTR landscape and will provide further updates as they arise. For questions or assistance in responding to a BDTR claim, contact Brit Schoepp-Wong, Timothy Bouffard or any member of the higher education practice.
In December 2025, Governor Kathy Hochul announced the start of a new $100 million Child Care Capital Construction Funding Program (4CFP). The program is designed to expand the availability of licensed, registered and permitted child care services across New York. It supports Governor Hochul’s ongoing efforts to help families access reliable and affordable child care. The application submission period began on Feb. 2, 2026 and will close on March 13, 2026.
The New York Office of Children and Family Services (OCFS) and the Dormitory Authority of the State of New York (DASNY) will administer the 4CFP. Both agencies will review applications. Applicants must demonstrate how they will either increase the availability of licensed, registered and permitted child care within their current program or establish a new child care program to meet this goal. To be eligible for funding, the child care program either is, or will be, a child care program licensed pursuant to 18 N.Y.C.R.R. § 418-1; a school age child care program registered pursuant to 18 N.Y.C.R.R. § 414; or a group day care program permitted pursuant to Article 47 of the New York City Health Code.
The following types of entities are eligible to apply for funding:
private and public colleges and universities;
municipalities;
not for profit corporations; and
public authorities.
Awarded funds may be used to construct new child care facilities or expand existing ones, including covering costs related to design, construction, reconstruction, renovation and necessary equipment for child care programs. Eligible projects include costs of interior and exterior building improvements and architectural design and engineering resulting in stamped construction documents.
At the time of application, applicants must: (1) have control of the site; (2) demonstrate construction feasibility; and (3) attest to a willingness to accept families that receive child care assistance. In addition to the application, applicants must submit their site control documentation, construction feasibility documentation and a project budget.
The project budget must demonstrate how the project will be fully funded. Applicants must indicate all sources and uses of funds, including the 4CFP Grant amount requested. Applicants are required to attach letters of commitment (or contingent commitment) from each source of funds. Additional documentation is required if the project or any part thereof will be funded through grantee equity, an adopted budget, bond anticipation notes, bonds, capital campaign, fundraising, donations and loans or line of credit. While bonds may be used to finance portions of the project, 4CFP will reimburse only those project costs that are not paid with bond proceeds or other long-term debt instruments. Project costs paid with funds drawn from the corpus of a tax credit structure are also ineligible for reimbursement. Accordingly, projects may not be fully financed using long-term debt instruments, including bonds, or with funds drawn from the corpus of a tax credit structure.
Nonprofit institutions must obtain approved prequalification status through the Statewide Financial System before submitting an application and must maintain this status through the execution of any award agreement and payment of all requisitions. Applications submitted without prior prequalification will not be considered. Interested institutions should consider commencing the application process soon, as obtaining prequalification may take several weeks.
Project locations owned by religious organizations may be eligible if the applicant legally certifies that assets or improvements funded with grant proceeds will only be used by the child care program. Religious organizations must also certify that no portion of the project financed with grant proceeds shall be used for any of the following:
sectarian instruction or study;
a place of devotional activities;
a place of religious worship;
a facility used primarily in connection with any part of the program of a school or department of divinity for any religious denomination; or
the training of ministers or other similar persons in the field of religion.
In addition, religious organizations must certify that the child care program will be open to all individuals regardless of religious affiliation, ethnicity, race or sexual orientation and that they will take affirmative steps to inform the public that the program welcomes all individuals without regard to these characteristics.
OCFS and DASNY issued a detailed guidance document titled Request for Applications (RFA). Potential applicants should review the RFA and its appendices for the full list of eligibility and submission requirements and to obtain more information about the process and evaluation criteria.
You may access the following links for more information:
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.
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.
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.
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, Timothy Bouffard 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.
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.
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.
