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On Wednesday, February 12, Kelly Fortier, Greg Hartwig, Sarah Helton, Daniel Kaufman, Galen Mason, Carrie Meigs, Emi Passini, and Kevin Terry hosted a complimentary live webinar, "Navigating the New Administration's Impact on Higher Education Institutions." Their discussion aimed to provide context and clarity surrounding this deeply complex topic. The following is a condensed version of their discussion. <a href="https://register.gotowebinar.com/recording/3754552278672057264" target="_blank" rel="noreferrer noopener">Watch the full recording here</a>.

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<cite>*Information provided is for general informational purposes only and is not intended to be legal advice. While we strive to ensure the accuracy and timeliness of the information, laws and regulations are subject to change. We recommend contacting your Michael Best attorney for advice specific to your situation. </cite>

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Since the inauguration of President Trump, higher education institutions have been impacted by myriad executive orders and legal decisions. “There’s no doubt there’s been a lot of changes, these are very fluid times. It requires being nimble and pivoting quite a bit,” shared Dan Kaufman at the beginning of the discussion. “We are here to help guide you through these changes.”

The following will examine six areas where higher education institutions will likely see change.

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Expectation one: Anticipate a return to what Title IX looked like in 2020 under the first Trump Administration

Carrie Meigs: “Title IX has been very fluid, very much in flux. But...by January 2025, federal courts had struck down and entered injunctions as to many if not all of the Biden Administration rules. That had the effect of taking us back to the 2020 rules that had existed under the first Trump Administration.”

Change one: Live hearings are back

Carrie Meigs: “In all open investigations, there will have to be live hearings, and the accused will have the opportunity to cross-examine the witness.”

Change two: Title IX no longer extends certain protections based on gender and gender identity

Carrie Meigs: “It is very clear under President Trump's Administration that these protections under Title IX will very much be based on biological sex assigned at birth.

The definition of sexual harassment as it sits now under the 2020 rules has been narrowed a little bit and it uses this reasonable person standard. But it also uses this language about the conduct having to be severe, pervasive, and objectively offensive. And so that's a high standard that an accused would need to meet to demonstrate a violation of Title IX.”

Change three: “Deliberate and indifferent” standard updated

Carrie Meigs: “Now under the 2020 rules that remain in effect, at least for the time being, in order to prevail on a Title IX claim, there has to be a demonstration that the institution of higher education was actually deliberately indifferent. And so that requires really both knowledge and intent. So again, really raising the standard or raising the level of culpability that someone would have to prove under Title IX.”

Change one: Executive Order (EO) 14173 “Ending Illegal Discrimination and Restoring Merit-based Opportunity”

Emi Passini: “Under the EO, federal contractors and grant recipients have to certify that they do not operate any diversity, equity, or inclusion programs that would violate applicable anti-discrimination laws. That certification requirement is effective April 21.

The EO reportedly does not impact academic instruction. The EO directs the attorney general and the secretary of education to issue guidance to higher ed institutions that receive federal grants or are participating in Title IV funding on how to comply with the Students for Fair Admissions Supreme Court decision.

We anticipate instead of providing guidance on how to comply with the SFFA decision, the guidance will instead interpret the SFFA's decision to apply to subjects more broadly beyond admissions, so things like scholarship programs, student support services, and potentially even educational programming.”

Change two: Executive Order (EO) 14168 Defending Women from Gender Ideology, Extremism and Restoring Biological Truths to the Federal Government

Emi Passini: “The EO directs the Department of Education to rescind its guidance that extended Title IX protections to include gender identity. The EO aims to limit Bostock’s holding specifically to Title VII and even more specifically to hiring and promotion decisions under Title VII.”

Emi Passini key takeaway: “You really need to know what your institution is doing in the broadest sense of what DEI means. Once you have an understanding of what your programs and policies are, you’ll be able to better assess your risk if we hopefully do get more guidance on what is illegal and what is not illegal. Be careful what you put in writing. If at all possible, try to do these reviews or audits under the attorney-client privilege.”

Change one: ICE can now do enforcement actions on campus

Kelly Fortier: “ICE can do enforcement actions on campus now, but it still has to have the correct documentation to do so.

Probably the biggest recommendation I'm telling all employers, all community organizations is to know what to do if ICE does come to your organization, if ICE does come on campus. A very simple one to two-page set of protocols.

ICE has the ability to go into private spaces, but only if they have proper judicial warrants, meaning they have a warrant that is signed by a and issued from a court of law, state or federal court. Most of the time, ICE is using administrative warrants to pick up individuals, to detain individuals. Administrative warrants, which are issued from a government agency, are not sufficient.”

Expectation one: Longer wait times for visas

Kelly Fortier: “Those of you that sponsor employees for student or for work visas, for green cards, and even those that are involved in the student visa process, everyone should anticipate much longer processing times from all the government agencies.”

Expectation one: Expect a backlog in cases at the NLRB

Kevin Terry: “Until a quorum is reached, the [NLRB] board itself is not going to be able to issue decisions, nor will it be able to engage in rulemaking.”

Expectation two: General Counsel Memo 26-06 likely to be rescinded

Kevin Terry: “This memo basically provided a template FERPA release for students to sign, so unions could get access to information and ultimately organize easier on campus. This memo is likely to be rescinded, again making it more difficult for unions to get that information.”

Expectation three: Changes to the independent contractor test

Kevin Terry: “Under this Administration, it's likely to see the independent contractor test become more favorable for colleges and employers, making it easier to assert that these gig or contingent workforce graduate students are not employees under the act.”

<a href="http://www.michaelbest.com/Newsroom/361305/Webinar-Recap-NLRB-Update-How-the-New-Administration-May-Impact-Labor-Laws">Read more about the impact to labor relations in general here</a>.

Change one: Proposed NIH cuts

Greg Hartwig: “NIH came out on Friday proposing to cut indirect cost reimbursements from an average of roughly 30 percent down to 15%. The cap before had been 60%.

NIH provides roughly $35 billion in grants to state universities and private institutions focusing on medical research, life sciences research, and this cut is proposed to say about $4 billion. From our standpoint, we work with about 40 different universities helping them protect their intellectual property.”

Change two: March-in rights

Greg Hartwig: “With the new Trump Administration, it's very unlikely that they will pursue the Biden's Marchant Rights framework. I think for universities those that are engaged in this type of research and we're seeing more and more of that where initial drug you know pharma small molecule type research is being done on campus. I think this is good news for them because it maintains that incentive. It makes it easier for universities to partner with Big Pharma and bring, you know, drugs that are needed by the public to the market.”

Change three: Likely changes at the Patent Office

Greg Hartwig: “The Commerce Secretary candidate, Howard Lutnick... he would be probably one of the most pro-patent friendly secretaries of commerce we've had in history. We're guessing that one of the issues he may take up is patent eligibility, which has been a hot issue for universities and others when it comes to software.”

Expectation one: Changes to student loan forgiveness

Sarah Helton: “To date, we have not seen any major action related to the loan forgiveness programs. However, we do have great indication that he [President Trump] will not proceed forward in the same way that President Biden did. We can expect that we may see some attempts to potentially repeal some programs. The big question is whether President Trump's Administration would have the authority to do that.”

Change one: The College Cost Reduction Act

Sarah Helton: “[This] caught the attention of the higher ed community because of the dramatic reforms that it would have related to the changing federal student aid calculations, the awards, the shifting of liabilities from students to institutions as well as to reducing some of the availability of some student aid programs among other policy changes. This bill would require democratic support and in order to pass filibuster, you can see by only having 153 Republican votes.”

Expectation two: Tax reforms may impact higher education institutions

Sarah Helton: “As we may recall, back in 2017, there was a major provision that was included in there that impacted higher ed institutions endowments where it launched a 1.4% excise tax on the investment income at private institutions that had at least 500 tuition-paying students and endowments worth at least 500,000 per student.

We understand that there are discussions under this Republican-led Congress to revisit that provision and in consideration for even increasing that tax further.

What this means for the higher ed community is to be informed, be prepared, be engaged, and understand that in meeting with members of Congress about the impacts that these proposals would have related to not only the institutions itself but also to students.”

For more information, or to discuss how these changes may impact your institution, please contact our team.

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Webinar Recap Navigating the New Administration’s Impact on Higher Education Institutions

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