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.
On Aug. 7, 2025, the President issued a Memorandum to the Secretary of Education (“Memorandum”) titled “Ensuring Transparency in Higher Education Admissions.” The Memorandum is a product of recent Administration priorities aimed at limiting or eliminating the use of race in college and university admissions.
The Trump Administration’s Memorandum relies on the Supreme Court’s June 2023 decision in Students for Fair Admissions (wherein the Court held that affirmative action programs that do not comply with the Court’s strict scrutiny standard violate the Constitution) for the premise that “the Supreme Court of the United States has definitively held that consideration of race in higher education admissions violates students’ civil rights.” The Memorandum states that colleges and universities engage in “rampant use” of certain “racial proxies” like diversity statements, which the Administration describes as “concern[ing]” and practices that “threaten our national security and well-being.”
The Memorandum directs the Secretary of Education (the “Secretary”) to, within 120 days, “expand the scope of required reporting to provide adequate transparency into admissions….” To that end, it directs the Secretary to “increase accuracy checks of submitted data to ensure the validity of [the Integrated Postsecondary Education Data System] IPEDS data.” (Emphasis added.)
Coupled with the Memorandum, the Administration also released a Fact Sheet, which explained the “lack of available admissions data from universities – paired with the rampant use of ‘diversity statements’ and other overt and hidden racial proxies – continues to raise concerns about whether race is actually used in admissions decisions in practice.” The sheet further touted the Administration’s efforts in “holding elite universities accountable,” through various agreements and settlements.
The Memorandum mandates the Secretary to “revamp the online presentation of IPEDS data, such that it is easily accessible and intelligibly presented for parents and students” and to, if necessary, “overhaul the IPEDS data collection portal to remove inefficiencies and better streamline the process to more efficiently organize and utilize the data received from the institutions.”
The National Center for Education Statistics (“NCES”) is the principal federal agency responsible for collecting, analyzing and reporting data on education in the United States. IPEDS, which is managed by NCES, constitutes the “core postsecondary education data collection program, designed to help NCES meet its mandate to report full and complete statistics on the condition of postsecondary education in the United States.” NCES Handbook of Survey Methods, Integrated Postsecondary Education Data System (IPEDS).
IPEDS collects data annually via surveys from every postsecondary institution participating in federal student financial aid programs. Colleges and universities are already required to report certain information to IPEDS, including the race and ethnicity of their students, pursuant to the Higher Education Act and related regulations. Colleges and universities that do not comply with IPEDS reporting requirements are subject to penalties, including fines.
In a notice seeking public comment (the “Notice”) on the Memorandum, the Department of Education provides insight on the type of data it intends to collect. The Department indicates it plans to seek data based on, inter alia, students’ race, sex, high school GPA, test scores, time of application, types of application (early decision, early access or regular decision), ranges of family income, Pell Grant eligibility, parental education and financial aid status. The data that the Department intends to collect on financial aid awards will include both merit-based and need-based scholarships, and any financial aid from federal, state or local sources, disaggregated by a variety of factors, including admissions test scores, high school GPA, ranges of family income and whether the student was admitted via early decision, early action or regular admission. The Notice signals that a new IPEDS “Admissions and Consumer Transparency Supplement” (ACTS) survey component would be the means to collect this data, but not necessarily every institution would be required to participate.
The Notice explains that four-year institutions with “selective” admissions, as opposed to trade schools and community colleges, “have an elevated risk of noncompliance with the civil rights laws” and “in awarding scholarships because of their selectivity” and therefore would be subject to the ACTS survey component. The ACTS survey would seek data on undergraduate and graduate students for the five prior academic years to help “establish a baseline of admissions practices from before” the Supreme Court’s decision in Students for Fair Admissions.
The Notice seeks public input regarding (1) whether there are certain academic institutions or characteristics of academic institutions that make them at high or low risk of noncompliance to help the Department identify whether it should narrow or expand the scope of institutions required to complete the ACTS survey; (2) whether open enrollment institutions (community colleges and trade schools) are “at-risk of noncompliance with respect to scholarship awarding practices that provide preferential treatment based upon race;” and (3) the anticipated amount of time it would take to collect and submit the data requested by the ACTS survey. The public comment period ends Oct. 14, 2025.
In light of this Memorandum and Notice, colleges and universities should be prepared for increased government oversight with respect to their admissions and institutional aid practices as those practices may be reflected in the demographic data collected and reported via IPEDs surveys. Because a stated goal of the Administration is to make the presentation of IPEDS data more accessible, it is likely there will be an increase in complaints from students, parents and/or the public in addition to those initiated by the Department.
Bond will continue to update clients on this matter as the Department of Education implements the Memorandum. If you have any questions about what information needs to be collected in connection with this Memorandum, or what this may mean for your institution, please contact E. Katherine Hajjar, Samuel P. Wiles, any attorney in Bond’s higher education practice or the Bond attorney with whom you have regular contact.
On June 4, 2025, President Donald J. Trump signed a presidential proclamation restricting the entry of foreign nationals from 19 countries into the United States, citing national security, public safety and immigration enforcement concerns. This order was issued pursuant to section 212(f) of the Immigration and Nationality Act, which authorizes the president to suspend the entry of any class of foreign nationals whose presence in the United States would be detrimental to the national interest. The new rules take effect on June 9, 2025, and impose two types of travel restrictions: full entry suspensions and partial entry suspensions.
Full Suspension on Entry
A full suspension applies to both immigrant and nonimmigrant visa categories and prohibits virtually all nationals from the affected countries from entering the United States. This includes visitors, students, workers and individuals seeking permanent residence through an immigrant visa:
Twelve countries are subject to full entry suspensions:
Afghanistan
Burma (Myanmar)
Chad
Republic of the Congo
Equatorial Guinea
Eritrea
Haiti
Iran
Libya
Somalia
Sudan
Yemen
The administration cited a range of concerns for these countries, including terrorism, lack of reliable identity documentation, absence of cooperation in repatriating deportees and high visa overstay rates. For example, Equatorial Guinea had a student and exchange visa overstay rate exceeding 70%, while Chad had a combined overstay rate above 50%, according to the order. In other cases, such as Iran and Afghanistan, the cited reasons included state-sponsored terrorism and the lack of a functioning government capable of ensuring security vetting.
Partial Suspension on Entry
In contrast to the full suspension, a partial suspension blocks specific visa categories, most notably immigrant visas, tourist and business visitor visas (B-1/B-2), and student and exchange visitor visas (F, M and J), while leaving open the possibility of entry through other nonimmigrant visa types, such as certain employment-based or diplomatic categories. However, even in cases of partial suspension, consular officers are instructed to limit the validity period of any visas that are still issued.
Seven countries are subject to partial entry suspensions:
Burundi
Cuba
Laos
Sierra Leone
Togo
Turkmenistan
Venezuela
The Proclamation Does Not Make Anyone Currently in the United States Deportable
Importantly, the entry restrictions apply only to foreign nationals from the listed countries who are outside the United States as of June 9, 2025, and do not already have valid visas. Foreign nationals lawfully present in the United States on valid visas or valid status (such as F-1 students, H-1B employees or green card holders) are not affected in terms of deportability solely because of this proclamation. They may continue living and working in the United States in accordance with the terms of their existing status.
Individuals with Valid Visas Should Avoid International Travel
Even though the proclamation states that it applies only to individuals who are outside the United States and do not have a valid visa as of June 9, 2025, individuals from the listed countries should avoid international travel. Reentry to the U.S. is not guaranteed, even with a previously valid visa, because the use of that visa after June 9 may trigger a new entry determination under INA § 212(f). Customs and Border Protection (CBP) officers may interpret the proclamation as grounds to deny admission based on visa category or national security concerns. Consular officers may also restrict or cancel visa validity in light of the proclamation. Individuals risk being denied boarding, refused entry at the port of entry or having to qualify for an exception or waiver to return. Employers, students and other affected individuals should consult immigration counsel before departing the United States.
Change and Adjustment of Status
Additionally, the proclamation does not bar the United States Citizenship and Immigration Services (USCIS) from processing change of status or adjustment of status applications for individuals who are already lawfully present in the United States. Because the proclamation is issued under INA § 212(f), which governs admission into the United States from abroad, it does not directly apply to internal immigration benefits adjudicated by USCIS. A change of status (e.g., from F-1 to H-1B) or an adjustment of status to permanent residence (green card) does not involve a new entry and is therefore outside the scope of the proclamation’s restrictions. While USCIS retains general discretion in adjudicating such requests, it cannot deny an application solely on the basis of the proclamation or the applicant’s nationality. However, individuals who change status within the United States may face barriers to reentry if they travel abroad, as the proclamation would then apply at the visa issuance or inspection stage.
Exceptions
While the proclamation imposes sweeping restrictions, it also includes limited exceptions. These include lawful permanent residents (green card holders), dual nationals traveling on passports from non-restricted countries, diplomats, certain family-based immigrant visa applicants with strong documentation, adoptions, U.S. government employees and their families under special visa programs, Afghan special immigrant visas and individuals seeking entry for national interest or humanitarian reasons. Notably, the proclamation does not apply to refugees already admitted to the United States or to those granted asylum, nor does it preclude new asylum or humanitarian claims filed in accordance with U.S. and international law.
Exception for Athletes and Sports-Related Entrants
The proclamation also allows for case-by-case exceptions for professional athletes and essential personnel traveling to the United States to participate in major sporting events, as determined by the Secretary of State. This exception may include players, coaches, medical staff, other critical team members – and their immediate relatives – who are competing under the auspices of recognized leagues, tournaments or international governing bodies. Applicants must demonstrate the significance of the event and the necessity of their presence, and any exception is subject to consular or CBP discretion. Affected individuals should coordinate closely with sponsoring organizations and immigration counsel to ensure timely and well-documented requests.
Future Developments
The proclamation directs an initial review period of 90 days during which the Secretary of State, in coordination with the Attorney General, Secretary of Homeland Security and Director of National Intelligence, must identify measurable steps that each listed country can take to improve its information-sharing practices and security protocols. This 90-day window is intended to allow the listed governments to engage with the United States and potentially qualify for waivers or modifications of the restrictions based on their response.
Following the initial review, the proclamation mandates a formal reassessment of the list every 180 days. Countries may be removed if they demonstrate meaningful progress in areas such as identity verification, cooperation in repatriation, sharing of criminal or terrorist information and reliability of travel documents. Conversely, other countries may be added to the list if they are found to have deficient vetting practices or pose similar security concerns. The Secretary of State is also instructed to maintain ongoing diplomatic engagement with listed countries to provide guidance and support for compliance with U.S. vetting standards.
Conclusion
This proclamation demonstrates a renewed emphasis on country-specific entry restrictions and enhanced pre-screening procedures in U.S. immigration policy. Foreign nationals from the listed countries, along with U.S. petitioners and sponsors, should seek immediate legal counsel to determine whether existing petitions or visa applications will be affected and whether any exemptions or waiver processes may apply.
If you have questions about how this proclamation may impact your case or your organization, please contact our immigration practice for individualized guidance.
On April 24, 2025, two U.S. District Courts issued Orders finding the U.S. Department of Education (DOE)’s Feb. 14, 2025 “Dear Colleague” Letter (DCL) to be unlawful and narrowly restricting the DOE’s enforcement of the DCL. The DOE’s ability to enforce the DCL is in a holding pattern, and it will likely face additional challenges. This is a developing issue that will not have a clear resolution any time soon.
The New Hampshire Preliminary Injunction
The U.S. District Court for the District of New Hampshire granted a request for a preliminary injunction in National Education Association, et al. v. United States Department of Education, effectively preventing DOE from enforcing its Feb. 14, 2025 DCL against the “[P]laintiffs, their members, and any entity that employs, contracts with, or works with one or more [P]laintiffs or one or more of [P]laintiffs’ members.”
The DCL, which was issued pursuant to the Jan. 21, 2025 Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” asserts that many educational institutions have “embrace[d] … pervasive and repugnant race-based preferences and other forms of racial discrimination” in “every facet” of their operations, and have “toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices under the banner of [Diversity, Equity, and Inclusion] DEI .” The DCL makes clear that institutions that continue to advance “illegal DEI,” (which is not defined in the DCL or the Executive Order)” will jeopardize their receipt of federal funding, including federal financial aid.
In March of 2025, the National Education Association (NEA) and the American Civil Liberties Union (ACLU) — joined by the NEA-New Hampshire, the ACLU affiliates of New Hampshire and Massachusetts, and the Center for Black Educator Development (collectively the “Plaintiffs”)—filed a lawsuit in federal court requesting preliminary injunctive relief to prevent the DOE’s enforcement of this policy while the case is litigated. In this Order, the Court found that the Plaintiffs had shown that the DCL was so vague that it denied due process, suppressed legitimate speech in violation of the First Amendment, and violated the Administrative Procedure Act (APA) by not following the notice and comment process for rulemaking, which findings were sufficient for the Court to grant a preliminary injunction.
However, the Court, noting that nationwide injunctions, particularly nationwide preliminary injunctions, have recently received sharp criticism, including from members of the U.S. Supreme Court, did not issue a nationwide injunction, as the Plaintiffs had argued, but also did not limit the injunction to the Plaintiffs as requested by the government, as noted above. While this Order does not prevent the DOE from enforcing the DCL upon any institution or entity outside of this limited scope, it could very well serve as the template for similar orders across the country. On May 13, 2025, the parties agreed to a briefing schedule regarding competing motions to dismiss. Assuming it is adopted, motions to dismiss will be fully briefed by the end of July 2025.
The Maryland Temporary Stay
On the very same day as the New Hampshire decision, the U.S. District Court for the District of Maryland issued a “temporary stay” in a substantively similar case brought by the American Federation of Teachers and its Maryland affiliate, as well as the American Sociological Association, and a Eugene, Oregon School District. American Federation of Teachers, et al., v. Department of Education, et al. This temporary stay will prevent the DOE from enforcing the objectionable provisions of the DCL and its implementing FAQs that go beyond existing law so as to “preserve status or rights pending conclusion of the review proceedings,” without precluding the DOE from enforcing any policy within its existing legal authority. While the Maryland Court’s temporary stay is broader than the New Hampshire Court’s injunction in that it applies nationwide, it recognizes that during the litigation the DOE may undertake enforcement actions in accordance with existing law. As with the New Hampshire case, the parties recently agreed to a briefing schedule to file competing motions to dismiss. The Court adopted the joint proposal, and the motions are scheduled to be fully briefed by the end of July 2025.
Takeaways
While these grants of temporary relief are a setback for the DOE, which has not appealed these decisions, the DOE will certainly continue to enforce its agenda wherever it can. Even if the courts ultimately strike down most or all of the DCL and its implementation, the DOE could move to clarify the regulations via notice and comment rulemaking, which typically takes months or even years to complete. All of this means the path forward in this area is still uncertain, which makes consultation with legal counsel to assess the impact of these developments on your particular institution imperative.
Bond attorneys are following these, and related legal developments, closely. If your institution would like further guidance, please reach out to an attorney in our higher education practice or the Bond attorney with whom you are regularly in contact.
On May 5, 2025, the Department of Education (ED) released a “Request for Institutions to Provide Repayment Information to Former Students to Prevent Defaults” (GEN-25-19). Noting that “only 38% of Direct Loan and Department-held Federal Family Education Loan Program borrowers are in repayment and current on their student loans,” ED estimates that “almost 25% of the entire portfolio is either in default or a late stage of delinquency.” Although the Department paused its requirement that students make payments on their defaulted federal student loan debt in March of 2020 due to the COVID-19 pandemic, ED resumed collection of defaulted student loans on Monday, May 5, 2025, and is asking institutions whose students have incurred federal student loan debt to contact those students who have student loan debt, particularly those who are in default. These communications must be made in the next few weeks: the Secretary has set a deadline of June 30, 2025.
Communications to Students
ED is tasking institutions with “providing clear and accurate information about repayment to borrowers through entrance and exit counseling,” and states that colleges and universities are responsible for “disclosing annual tuition and fees and the net price to students and their families on the costs of a postsecondary education.” Conceding that higher education institutions have provided “direct advice and counsel to students regarding their borrowing,” ED warns that “institutions must refocus and expand these efforts as pandemic flexibilities come to an end.”
The Secretary is directing institutions to provide the following information to all borrowers who have not been enrolled at the institution since Jan. 1, 2020, and for whom they have contact information:
Remind the borrower that he or she is obligated to repay any federal student loans that have not been repaid and are not in deferment or forbearance;
Suggest that the borrower review information on StudentAid.gov about repayment options; and
Request that the borrower log into StudentAid.gov using their StudentAid.gov username and password to update their profile with current contact information and ensure that their loans are in good standing.
ED requires that institutions include all three of the bulleted information statements above in the institution’s notice to borrowers.
The Department expects this outreach be performed no later than June 30, 2025 and suggests that institutions “focus their initial outreach on students who are delinquent on one or more of their loans in order to prevent defaults.” A future communication from ED will provide assistance to institutions on how to identify and communicate with those borrowers.
A press release posted on April 21, 2025 stated: “There will not be any mass loan forgiveness.” It also stated that “Later this summer, ED will send required notices beginning administrative wage garnishment” for those borrowers in default.
Impact of Cohort Default Rates (CDR)
ED’s announcement reminds colleges and universities that Section 435 of the Higher Education Act, which governs federal student aid programs, provides that institutions “will lose eligibility for federal student assistance, including Pell Grants and federal student loans, if their CDR exceeds 40% for a single year or 30% for three consecutive years.” Because the repayment pause on student loans ended in Oct. 2023, “CDRs published in 2026 will include borrowers who entered repayment in 2023 and defaulted in 2023, 2024 or 2025.” Furthermore, says ED, “those borrowers whose delinquency or default status was reset in Sept. 2024 could enter technical default status / be delinquent on their loans for more than 270 days beginning in June and default this summer.” Therefore, it is in the institutions’ interest to contact former students in order to minimize the college or university’s cohort default rate in order to avoid being barred from the federal student assistance program.
Publication of an Institution’s Student Loan Default Rate
The May 5th communication reminds institutions that ED has data on the repayment status of each borrower as well as that borrower’s institution(s) attended. The Department will calculate non-repayment rates for every college and university that participates in the federal student aid program and will publish this information later in May on the Federal Student Aid Data Center website.
ED has promised to announce further requirements and information for institutions participating in the federal student assistance program. Bond will provide updates as this additional information is released by ED. Please contact a Bond attorney in the higher education practice or the Bond attorney with whom you normally work, for questions, concerns and tailored consultation.
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.
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:
Higher education institutions must provide high quality, high value academic programs free from unlawful discrimination;
Barriers are reduced that limit institutions from adopting practices that advance credential and degree completion and encourage new models of education;
Accreditors must ensure that institutions support and prioritize intellectual diversity among faculty to advance academic freedom, intellectual inquiry, and student learning;
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
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:
Recognizing new accreditors to increase competition and accountability “in promoting high-quality, high-value academic programs focused on student outcomes;”
Mandating that institutions use program-level student outcome data that improves results, without reference to race, ethnicity, or sex;
Providing accreditors with noncompliance findings from investigations of member institutions by the Office for Civil Rights under Title VI or Title IX;
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]
Enhancing the accreditor recognition review process using technology;
Streamlining the process for institutions to change accreditors; and
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 April 9, 2025, the U.S. Citizenship and Immigration Services (USCIS) issued guidance stating that it will begin considering individuals’ antisemitic activity on social media and the physical harassment of Jewish individuals as grounds for denying immigration benefit requests. According to the news release, “[t]his will immediately affect aliens applying for lawful permanent resident status, foreign students and aliens affiliated with educational institutions linked to antisemitic activity.”
Under this guidance, USCIS will consider social media content that indicates that a non-citizen endorses, espouses, promotes or supports antisemitic terrorism, antisemitic terrorist organizations, or other antisemitic activity as a negative factor in any USCIS discretionary analysis when adjudicating immigration benefits. This guidance took effect immediately on April 9.
This guidance stems from President Trump’s executive orders on Combatting Anti-Semitism (issued in 2019), Additional Measures to Combat Anti-Semitism and Protecting the United States from Foreign Terrorist and Other National Security and Public Safety Threats (both issued in 2025). To effectuate the directives of these executive orders, the U.S. Department of Homeland Security (DHS) has stated that it will enforce the existing “relevant immigration laws to the maximum degree, to protect the homeland from extremists and terrorist aliens, including those who support antisemitic terrorism, violent antisemitic ideologies and antisemitic terrorist organizations such as Hamas, Palestinian Islamic Jihad, Hezbollah and Ansar Allah aka: ‘the Houthis.’” Hamas and Hezbollah were designated as terrorist organizations by the U.S. Department of State (DOS) in 1997, Palestinian Islamic Jihad in 2014 and the Houthis in March 2025.
Under U.S. immigration law, both the USCIS and DOS have the authority to deny immigration benefits, including the issuance of a visa, entry into the United States, and permanent resident status, if a foreign national applicant has engaged in, among other things, various types of unlawful conduct or crimes or is a member of, or has assisted, any terrorist or other armed organization or is otherwise suspected of intending to do, or, having done, those things. For decades, any foreign national who has completed a visa application or a permanent residence application is asked many questions concerning their past, present and future activities, including whether they are terrorists and/or are members of, or have provided or intend to aid terrorist organizations. For example, the Form DS-160, the nonimmigrant visa application form used by foreign nationals to apply for a visa to enter the United States, includes the following questions:
Do you seek to engage in terrorist activities in the United States or have you ever engaged in terrorist activities?
Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations?
Have you ever committed, ordered, incited, assisted or otherwise participated in extrajudicial killings, political killings or other acts of violence?
Although affirmative answers (without sufficient ameliorating explanation(s)) will likely result in denial of the immigration benefit being sought or requested, lying about such activities will also result in denial or revocation of the benefit.
For the past decade, starting with a 2015 pilot program, USCIS has monitored and screened applicants’ social media accounts in connection with their applications for immigration benefits. In 2016, President Obama established the Social Media Division within the Fraud Detection and National Security Directorate of USCIS, which is responsible for identifying, reviewing, vetting and adjudicating cases involving national security concerns. The Social Media Division conducts social media screenings of applicants for immigration benefits to identify security risks and to detect fraud. Presumably, the Social Media Division will also be tasked with monitoring the activities described in this April 9th guidance issued by the USCIS.
Takeaways
Scrutiny of social media accounts for national security purposes, including the identification of terrorists and support for terrorist activity, has been a part of the visa application and immigration benefits vetting process since the Obama Administration. The issuance of this guidance is a reminder that such monitoring occurs and that negative determinations on immigration applications may occur if social media accounts and posts reveal support for antisemitic terrorism, violent antisemitic ideologies or antisemitic terrorist organizations.
Please contact your Bond immigration attorney if you have any questions related to this information memo.
On April 11, 2025, a new rule went into effect in which the United States government will start to strictly enforce the requirement that foreign nationals register their presence with U.S. Citizenship and Immigration Services (USCIS) and be fingerprinted if they remain in the United States for 30 days or longer.
Since the 1940s, U.S. immigration law has required all aliens 14 years of age or older (with certain limited exceptions) who remain in the United States for 30 days or longer to register their presence in the United States and to be fingerprinted, if they were not already fingerprinted when applying for a U.S. visa.[1] Most foreign nationals who visit the United States have complied with this requirement through the visa application process, the permanent residence application process, or the Electronic System for Travel Authorization (ESTA) entry process. USCIS will now start enforcing this requirement for those individuals who have not gone through these registration processes. The two main groups who have not gone through these registration processes and are primarily affected by the new rule are: (1) Canadians who enter through land ports-of-entry and are not required to obtain visas to enter the United States; and (2) foreign nationals who entered the United States before they turned 14 and who have remained in the United States after turning 14.
On March 12, 2025, pursuant to President Trump’s January 20, 2025 Protecting the American People Against Invasion executive order directing the U.S. Department of Homeland Security (DHS) to ensure compliance with the alien registration requirement, DHS issued an Interim Final Rule (IFR)[2] that (1) requires all aliens 14 or over in the U.S. for 30 days or longer to register their physical presence in the U.S. and provide their fingerprints (if they have not already done so), (2) creates a new online registration system and (3) establishes significant penalties for failure to register. These new requirements and systems went into effect on April 11, 2025.
This article discusses who is and who is not affected by this IFR, how to comply with the IFR, and the consequences of failing to do so.
Who Does Not Need to Register?
Most nonimmigrant and immigrant visa holders are not required to undertake this physical presence registration process and be fingerprinted under the IFR because they have already complied with these requirements through the visa application and ESTA travel authorization process. The groups of individuals who are not required to register include the following:
Foreign nationals staying in the United States fewer than 30 days;
Lawful permanent residents;
Nonimmigrants who were admitted to the United States and were issued a Form I-94 (electronic or paper) or Form I-94W;
Any non-citizen who has been issued an employment authorization document;
Any non-citizen who has applied for U.S. permanent residence and has attended a biometrics appointment;
A and G visa holders;
American Indians born in Canada who possess at least 50% blood of the American Indian race and who are present in the U.S. under the authority of 8 United States Code Section 1359[RPA4][GD5];
Visitors admitted under ESTA; and
Any non-citizen issued a border crossing card.
Who Must Register?
Those who must register under the IFR include all foreign nationals who remain in the U.S. for more than 30 days who have not gone through a registration and fingerprinting process in connection with an application for a nonimmigrant visa, employment authorization, permanent residence or admission into the U.S. through ESTA. These groups include the following:
Foreign nationals remaining in the U.S. 30 days or more who enter the United States without a visa or who don’t receive a Form I-94 record (paper or electronic);
Foreign nationals who enter the U.S. without inspection and who have not been fingerprinted in connection with any immigration application;
Non-US citizen children under the age of 14 who have not previously registered and will remain in the U.S. for 30 days or more. Minor children will be issued proof of registration but are not required to be fingerprinted until they turn 14; and
All non-U.S. citizen children, regardless of previous registration, who turn 14 years old in the U.S., must update their registration and be fingerprinted within 30 days after their 14th birthday, including:
Permanent residents who obtained their green cards when below age 14 are required to register and complete fingerprinting by submitting a Form I-90 once they reach 14 years old.
Non immigrant children who turn 14 while they are in the United States. Once the child turns 14, they will need to comply with the new requirement within 30 days of their birthday, even if they have previously received a Form I-94 admission record.
Registration Procedure
Those who need to register must use the Form G-325R, which must be submitted online through an individual USCIS account. The procedure is as follows:
Select “File a Form Online” and then choose “Form G-325R” from the dropdown menu.
Follow the instructions to complete the Form G-325R, upload any supporting evidence. and submit the completed form once ready.
USCIS will issue a receipt notice once the Form G-325R has been submitted, which should be retained as proof of registration
Completing the Form G-325R registration will initiate the scheduling of a biometrics appointment.
Attend the biometrics appointment, bringing the appointment notice and a photo identification to the appointment.
Upon completion of the biometrics, retain the biometrics appointment notice which has been endorsed by USCIS as proof of having completed the fingerprinting.
Evidence of Registration and Penalties
The new rules require that all non-U.S. citizens over the age of 18 carry proof their registration. For those who register under the process described above, the G-325R receipt notice and the endorsed biometrics appointment notice would constitute such evidence. For others who are not required to register under that process it might be their Form I-94, a permanent resident card or other documentation that the individual has received from USCIS.
Failure to register and/or to present valid proof may result in civil penalties of up to $5,000, imprisonment of up to 6 months, or both. Parents and/or guardians who fail to register minor children may also be held liable and subject to these same penalties.
Takeaways
Canadian citizens who enter the United States by land and who remain in the United States for more than 30 days should be cognizant of these registration requirements and make sure that they are in compliance. Similarly, parents of non-citizen children who will turn 14 should make sure to timely register their minor children’s presence in the United States in accordance with the procedures discussed above using the USCIS online account system.
Finally, as a reminder, it is important to understand that undergoing and/or completing this registration process does not confer lawful immigration status or the right to remain in the United States, nor do the documents issued as part of this registration process provide the right to remain in the United States, employment authorization to work in the United States, or any other right or benefit under the U.S. immigration laws. These documents are only proof that the individual has complied with the physical registration requirements.
Please contact your Bond, Schoeneck King, PLLC Immigration attorney if you have any questions regarding registration requirements and the registration process.
[1] The current law, Section 262 of the Immigration and Nationality Act (INA) (8 U.S.C. 1302), was enacted in 1952.
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.
