The First 100 Days And Higher Education: Litigation Roundup

In the first 100 days of the Trump administration, higher education institutions have grappled with a series of executive orders, guidance memoranda, and enforcement actions with sweeping implications for the U.S. education system. These actions have drawn swift legal challenges from states, education organizations, and other groups alleging the administration has exceeded its authority and violated the Constitution. There are over 30 lawsuits pending that challenge executive actions affecting higher education, and the number grows every day.

In this alert, we discuss key provisions of the orders and actions implicating the higher education sector and the lawsuits challenging them (building on our previous analysis here and here). We have grouped these actions based on their focus areas, including:

• Diversity, Equity, and Inclusion (DEI)
• Antisemitism/Title VI
• Title IX
• U.S. Department of Education Operations and Functionality
• Immigration

Diversity, Equity, and Inclusion ("DEI")

Two executive orders from January 2025 seek to end DEI and "diversity, equity, inclusion, and accessibility" ("DEIA") efforts in both government and the private sector, directing agencies to take enforcement actions against "illegal" DEI (collectively referred to as the "DEI Executive Orders"; for further discussion of these orders, see our prior discussion here).¹ In February 2025, the Department of Education's Office for Civil Rights ("OCR") issued a Dear Colleague Letter declaring the agency's intention to enforce these executive orders using Title VI and providing some discussion of the agency's interpretation of "illegal" DEI (previously discussed here).² In March 2025, OCR issued a Frequently Asked Questions ("FAQ") memorandum further expounding on its Dear Colleague Letter.³ On April 3, 2025, the Department published a certification requirement requiring all state and local education agencies to certify their compliance with Title VI and Students for Fair Admissions v. President and Fellows of Harvard College ("SFFA") at the risk of losing funding and facing liability under contract law and the False Claims Act. As noted below, on April 24, 2025, two federal district courts issued preliminary injunctions enjoining the implementation of OCR's Dear Colleague Letter.

On April 23, 2025, President Trump issued an additional executive order focused on higher education accreditors' use and application of DEI-related standards.⁴ As of publication, this specific Executive Order has not been challenged.

Litigants nationwide have challenged these actions. Notable cases include the following.

Challenges to the DEI Executive Orders:

• National Association of Diversity Officers in Higher Education v. Trump (D. Md.): In this constitutional challenge (previously discussed here), groups representing higher education officials, university professors, and the city of Baltimore allege that the DEI Executive Orders violate the Constitution's Spending Clause and separation of powers doctrine by directing executive branch officials to unilaterally terminate 'equity-related' grants and contracts without express statutory authority; due process guarantees under the Fifth Amendment for unconstitutional vagueness in the terms on which funding may be terminated or conditioned; and the First Amendment free speech rights of private entities. Status: While the U.S. District Court for the District of Maryland granted a nationwide preliminary injunction blocking the administration from enforcing key provisions of the Executive Orders terminating equity-related grants or contracts, holding that NADOHE had established a likelihood of success on its First and Fifth Amendment claims, the Fourth Circuit stayed the district court's injunction pending appeal, allowing the federal government to enforce the orders and proceed with terminating federal contracts and grants. Plaintiffs moved to vacate their preliminary injunction motion on March 21, 2025, arguing that an appeal would waste judicial resources because they intend to seek additional relief based on post-injunction developments. A hearing on this motion was held on April 10, 2025.

• National Urban League v. Trump (D.D.C.): In this suit, the National Urban League ("NUL") challenges not only the DEI Executive Orders, but also the January 20, 2025 Executive Order, "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government" ("Gender Executive Order," discussed here and below). NUL alleges that these orders and related agency actions violate the First Amendment by targeting and penalizing content and viewpoints supporting DEIA and transgender people. NUL also challenges these orders as violating the Fifth Amendment's right to equal protection by discriminating on the basis of race, sex, and transgender status. Status: The U.S. District Court for the District of Columbia held a hearing on Plaintiffs' motion for preliminary injunction on March 19, 2025. A decision on Plaintiffs' motion for preliminary injunction is forthcoming.

Challenges to OCR Guidance:

• American Federation of Teachers v. U.S. Department of Education (D. Md.): The American Federation of Teachers ("AFT") and others filed suit against the U.S. Department of Education focused on OCR's Dear Colleague Letter. The suit claims that the Dear Colleague Letter misrepresents the state of law under Title VI and the Constitution following the U.S. Supreme Court's decision in SFFA, which held that race-conscious admissions practices were unlawful. The AFT lawsuit asserts that SFFA's holding is limited to higher education admissions and race-based programs, leaving race-neutral programs beyond its scope. The AFT challenges the Letter's prohibitions and purported standards for evaluating discrimination claims under Title VI as unconstitutionally vague. It characterizes the prohibition on all programming supporting DEI at the risk of losing federal funding as an "unlawful attempt by the Department to impose this administration's particular views of how schools should operate as if it were the law." The lawsuit brings claims under the First and Fifth Amendments and the Administrative Procedure Act ("APA"). Status: On March 28, 2025, the AFT moved for a preliminary injunction to block the Department of Education from enforcing the Letter while the case is pending. On April 9, 2025, the AFT requested a second preliminary injunction blocking the Department's enforcement of its April 3, 2025 Title VI certification requirement. On April 24, 2025, the district court granted a preliminary injunction enjoining the implementation of the Letter, finding that the AFT was likely to succeed on the merits of their APA claim. However, it denied the AFT's requests to enjoin the other Department of Education activity (the FAQ memorandum, the "End DEI" Portal, and the certification requirement) or order the Department to enforce Title VI in line with prior guidance.

• National Education Association v. U.S. Department of Education (D.N.H.): The National Education Association ("NEA") filed a similar suit in New Hampshire, asserting the OCR guidance violates the Constitution and the APA. The NEA argues that the Dear Colleague Letter fundamentally contradicts Title VI in prohibiting equity and inclusion programs and violates due process and the First Amendment by imposing unconstitutionally vague standards that expose educators to arbitrary and discriminatory enforcement. The NEA also claims that the Letter interferes with the core First Amendment right to academic freedom by dictating what educators can teach, violating laws prohibiting the federal government from controlling curricula. Finally, the NEA challenges the Education Department's "End DEI" portal and FAQ memorandum. Status: On March 21, 2025, the NEA moved for a preliminary injunction. The parties filed an agreement on April 9, 2025 temporarily blocking enforcement of the Dear Colleague Letter and certification requirement until April 24, 2025. The district court granted the NEA's preliminary injunction motion on April 24, 2025, holding NEA was likely to succeed on its constitutional vagueness claim and APA claim, enjoining the Department from enforcing and/or implementing the Dear Colleague Letter, including through the FAQ memorandum, the End DEI Portal, and the certification requirement.

• State of New York v. U.S. Department of Education (D. Mass.): Most recently, on April 25, 2025, nineteen states brought suit in Massachusetts to challenge the April 3, 2025 certification requirement. The states allege this requirement—and the funding conditions and threats attached to it—violates the constitutional separation of powers by "usurping legislative authority," including through violations of the appropriations and spending clauses of the Constitution, violates the APA, and is ultra vires action exceeding any statutory authority. As of the date of publication, the states have not moved for preliminary relief.

Antisemitism/Title VI

On January 29, 2025, President Trump signed an Executive Order directing the government to prioritize enforcement actions to combat antisemitism.⁵ On February 3, 2025, the Department of Justice ("DOJ") organized a cross-departmental task force (including the Department of Education) to "root out anti-Semitic harassment in schools and on college campuses." The Task Force has since launched investigations into universities and canceled federal contracts and grant funding, including the following:

• DOJ investigations: On February 28, 2025, DOJ announced its plans to visit 10 university campuses alleged to have "experienced antisemitic incidents" since October 2023.
• OCR investigations under Title VI: On March 10, 2025, OCR sent letters to 60 universities "presently under investigation for Title VI violations relating to antisemitic harassment and discrimination," warning them of potential enforcement actions.
• Funding freezes in connection with stated concerns about antisemitism: The administration announced initial cancellations of $400 million in grants and contracts to Columbia University on March 7, 2025, on the stated basis that Columbia had allowed "illegal protests" and antisemitism to continue on its campus. The administration has since frozen $2.2 billion in multi-year grants and an additional $60 million in multi-year contracts intended for Harvard University and $510 million in federal grants to Brown University.

Challenges to the Antisemitism/Title VI Executive Orders and Actions:

• American Association of University Professors v. U.S. Department of Justice (S.D.N.Y.): The American Association of University Professors ("AAUP") and AFT sued the Trump administration for terminating $400 million in federal grants and contracts to Columbia University under Title VI. The lawsuit claims that the administration seeks to coerce the institution into policing free speech and academic inquiry by "weapon[izing] Title VI" while disregarding the statutory and regulatory requirements for terminating federal funding. It also argues the DOJ failed to provide a reasoned determination on whether Columbia's responses to complaints of antisemitism were deficient under Title VI prior to terminating funding and imposed "unconstitutional conditions" on the receipt of federal funds. Status: Plaintiffs moved for a preliminary injunction on April 3, 2025. Defendants' responses are due by May 1, 2025.

• American Association of University Professors - Harvard Faculty Chapter v. U.S. Department of Justice (D. Mass.): The Harvard AAUP and national AAUP filed a lawsuit challenging the Trump administration's review of $9 billion in federal contracts and grants to Harvard based on allegations that the University had failed to combat antisemitism and discrimination on its campus. The lawsuit claims that the administration's subsequent demands are designed to advance its policies and political agenda and violate Title VI. Plaintiffs argue that the administration's actions encroach on their First Amendment rights to free speech and academic inquiry, and the threatened cancellation of federal grants and contracts overrides direct Congressional authorization of federal funding. Status: Plaintiffs moved for a temporary restraining ("TRO") order on April 11, 2025. On April 15, 2025, Plaintiffs requested to withdraw their motion after the Trump administration announced it would freeze $2 billion in federal funding and asked the court's leave to seek other forms of expedited relief. On April 18, 2025, the court granted Plaintiffs' request, ordering the parties to submit a joint status report by May 16, 2025.

• President and Fellows of Harvard College v. U.S. Department of Health and Human Services (D. Mass.): In this suit, Harvard challenges the federal government over its $2.2 billion cuts and reports that it was "planning to pull an additional $1 billion of [Harvard]'s funding for health research." The lawsuit alleges that the funding freezes have "put vital medical, scientific, technological, and other research at risk" and claims that the government's actions are part of a broader effort to punish Harvard for rejecting its "unconstitutional demands" in letters addressed to the University. It argues that the government unlawfully froze billions in federal research funding as part of a "pressure campaign" to force Harvard into restructuring its internal governance, academic programs, and hiring and admissions practices. Harvard claims these actions violate First Amendment principles protecting academic freedom and characterizes the funding freezes as "arbitrary and capricious," arguing that the government has failed to identify any rational connection between antisemitism concerns and the research it has frozen. Status: On April 23, 2025, Harvard informed the court it did not intend to pursue a TRO or preliminary injunction, but instead would seek expeditious final relief. At an April 28, 2025 status conference, the parties agreed to go straight to summary judgment, and the hearing on this motion will be held on July 21, 2025.

Title IX

Two Executive Orders reinstated the Trump administration's 2020 Title IX rule, nullifying President Biden's Executive Order expanding the definition of sex-based discrimination under Title IX to include gender identity and sexual orientation.⁶ These new orders rescind federal policies that had previously recognized and protected transgender, nonbinary, and intersex groups from discrimination in education.

On January 31, 2025, OCR circulated a "Dear Colleague" letter (revised on February 4, 2025; not to be confused with the February 14, 2025 DEI-related letter discussed above) announcing its intent to enforce the 2020 Title IX rule and the Gender Order in both K-12 schools and higher education (discussed here). According to the letter, the Department will enforce Title IX protections "on the basis of biological sex" in schools and campuses.

On February 14, 2025, the Department of Education modified the FAFSA form to comply with the Gender Order. Student applicants can only select "male" or "female" rather than selecting from a range of gender options as the prior version allowed.

Legal Challenges to the Title IX Executive Orders:

• National Urban League v. Trump (D.D.C.): (see DEI section above)
• Tirrell v. Edelblut (D.N.H.): Two transgender high school athletes originally challenged a New Hampshire statute categorically barring transgender girls from school sports. On February 12, 2025, they expanded their lawsuit to challenge Trump's Executive Orders excluding transgender girls and women from sports by threatening to pull federal funds from schools allowing transgender athletes to play on girls' and women's sports teams. Plaintiffs claim the orders violate their rights under Title IX and the Equal Protection clause by discriminating against them on the basis of sex and transgender status, arguing that discrimination "on the basis of sex" encompasses discrimination against individuals because they are transgender under Title IX. Status: As of the date of publication, all deadlines in the case are stayed pending a responsive pleading from the new federal defendants, the deadline for which has been extended to June 4, 2025 due to claimed resource limitations at DOJ.

U.S. Department of Education Operations and Functionality

The Trump administration also took several significant steps to dismantle the Department of Education. On March 11, 2025, as part of Secretary McMahon's "final mission" for the Department of Education, the Department announced a reduction in force ("RIF") to discharge nearly 50% of its employees—reducing the Department's workforce from 4,133 to approximately 2,183. The RIF heavily impacted OCR, including layoffs of hundreds of OCR employees and the closure of more than half of its field offices. On March 20, 2025, President Trump signed an Executive Order directing the closure of the Department of Education (the "Closure Order"), which was formally created by Congress and is empowered by Congress to enforce a number of education-related federal laws.⁷

Legal Challenges to the Department of Education Cuts:

• State of New York v. McMahon (D. Mass): Twenty states and the District of Columbia sued Secretary McMahon, the Department of Education, and the Trump administration in the U.S. District Court for the District of Massachusetts to halt the announced layoffs. Alleging that the RIF is an "effective dismantling of the Department," the states argue that the layoffs nullify the Department's statutorily mandated functions, violating the separation of powers doctrine and the Take Care Clause of the Constitution (Article II, Section 3). The lawsuit challenges the Department's actions as arbitrary and capricious and details the wide-ranging harms the RIF will cause to states and their residents, including loss or delays in federal funding and uncertainty and delays in the administration of federal student aid. Status: On March 24, 2025, the states moved for a preliminary injunction. A motion hearing was held on April 25, 2025. A decision is forthcoming.

• Carter v. U.S. Department of Education (D.D.C.): Two parents and the Council of Parent Attorneys and Advocates brought a suit in Washington, D.C. against the Department of Education. Seeking to restore the OCR's investigation and complaint processing capacities, the lawsuit challenges the reduction of staffing and the Department's abrupt freezing of investigations into complaints alleging race- and sex-based discrimination under Title VI and Title IX. Emphasizing the critical role OCR plays in protecting students' civil rights, the lawsuit claims the Department's actions violate civil rights laws and disproportionately harm students of color, women, and LGBTQI+ students. The lawsuit connects the administration's actions to a broader agenda to eliminate the Department of Education and target programs supporting marginalized groups, which it argues violates the Equal Protection guarantee under the Fifth Amendment, the APA (through agency action that is arbitrary and capricious, not in accordance with law, and unlawfully delayed or withheld), Title VI, and Title IX. Status: On April 10, 2025, Plaintiffs filed an amended complaint adding new student and parent plaintiffs and allegations regarding intervening administrative actions.

• Somerville Public Schools v. Trump (D. Mass.): The AFT, two school districts in Massachusetts, and others sued the Trump administration in the U.S. District Court for the District of Massachusetts over the Closure Executive Order and mass layoffs at the Department. The lawsuit claims that because the Department of Education was created and "mandated by Congress to operate various programs for the benefit of America's students, parents, and schools," neither the President nor the Secretary of Education has the authority to eliminate it. The lawsuit refers to the RIF as the "first step" towards the closure of the Department and seeks relief from the administration's "unlawful" effort to eliminate the Department through the RIF, elimination of entire offices, and the Executive Order. Status: On April 1, 2025, Plaintiffs moved for a preliminary injunction to set aside the RIF order and enjoin Defendants from "taking further steps to implement that Order." A motion hearing was held on April 25, 2025. A decision is forthcoming.

• NAACP v. USA (D. Md.): The NAACP, the NEA, public school parents, and others filed suit in the U.S. District Court for the District of Maryland to "immediately halt" the administration's attempts to shutter the Department. The lawsuit claims that the administration's steps to "incapacitate the Department," which include the cancellation of $1.5 billion in grants and contracts and mass layoffs, are unconstitutional and violate Congress's directives. The lawsuit points to the Department's expansion of educational opportunities for students with disabilities through IDEA and its impact on closing equity gaps through federal student aid under Title IV of the Higher Education Act. It argues that dismantling the Department will reverse these gains and harm millions of students, families, schools, and other entities that rely on its effective operations. Status: This case is currently pending in the federal district court of Maryland awaiting Defendants' answer, and the plaintiffs have not moved for preliminary relief.

Immigration

On January 20, 2025, President Trump signed an Executive Order directing executive departments and agencies to enforce deportation orders and granting considerable discretion to the Secretary of Homeland Security to implement immigration law enforcement.⁸ The Department of Homeland Security ("DHS") Secretary Benjamine Huffman issued a directive enforcing this Executive Order and rescinding the Biden administration's guidelines for Immigration and Customs Enforcement ("ICE") and Customs and Border Protection ("CBP") enforcement actions that protected certain "sensitive" areas, including schools and universities, from law enforcement.

Legal Challenges to Immigration Actions:

• American Association of University Professors v. Rubio (D. Mass.): In a suit filed March 25, 2025, plaintiffs including the national AAUP and school-specific chapters challenged what they termed the Administration's "ideological-deportation policy," by which the government intended to selectively detain and deport noncitizen students and faculty who participated in pro-Palestinian protests and other expressive conduct. Their suit asserts that this policy violated the First and Fifth Amendments, as well as the APA. Status: While plaintiffs sought a preliminary injunction, during the hearing on that motion the court "collapsed" the preliminary relief proceedings into a trial on the merits, and construed the government's opposition as a motion to dismiss. In its order on that motion to dismiss, issued April 29, 2025, the court permitted the plaintiffs' First Amendment and APA claims to proceed, but dismissed the Fifth Amendment vagueness claim as inapplicable to the non-statutory policy. In recognizing the First Amendment claims, the court notably limited the application of "Red Scare"-era precedent that restricted the First Amendment rights of noncitizens.

• Denver Public Schools v. Noem (D. Colo.): Denver Public Schools sued DHS, seeking to enjoin immigration enforcement actions on or near school grounds and vacate the change in policy, arguing that it "gives federal agents virtually unchecked authority to enforce immigration laws in formerly protected areas, including schools." The lawsuit claims that removing schools from the "protected areas" list has forced it to divert resources from its educational mission to prepare for immigration arrests on school grounds and that attendance has decreased noticeably across all DPS schools since the policy was announced. The lawsuit challenges the policy as arbitrary and capricious under the APA because Defendants have failed to provide "good reasons for the new policy" or account for its negative impacts. The lawsuit also alleges that DHS violated the Freedom of Information Act ("FOIA") by not making the policy publicly available for inspection. Status: The court denied Plaintiff's motion for a TRO and preliminary injunction on March 7, 2025. Plaintiff filed an amended complaint on April 16, 2025. The status conference was moved to May 28, 2025, after Defendants' answer or other response to the amended complaint is due.

• City and County of San Francisco v. Donald J. Trump (N.D. Cal.): A group of California cities and counties filed suit challenging the Executive Order and the DOJ directive ordering U.S. Attorneys to investigate state and local officials who refuse to help execute the administration's immigration policies. The lawsuit alleges that these actions violate the Tenth Amendment, separation of powers, the Spending Clause, and the Due Process Clause, and challenges the Trump administration's authority to withhold federal funding from sanctuary cities to force them to comply with its immigration policies. Status: On March 17, 2025, Plaintiffs filed a motion for a preliminary injunction. A hearing on the motion was held on April 23, 2025. On April 24, 2025, the court granted Plaintiffs' motion, enjoining Defendants from directly or indirectly taking any action to withhold, freeze, or condition federal funds from the cities and counties based on the "Protecting the American People Against Invasion" Executive Order or the DOJ directive.

• Challenges to Student Visa Revocations: Numerous lawsuits have also been filed by students, universities, and advocacy organizations claiming that the Trump administration's mass revocation of student visas and termination of students' Student and Exchange Visitor Information Systems ("SEVIS") records is unlawful and violates the APA and due process under the Fifth Amendment. These terminations to the F-1 student status of thousands of international students come amid heightened immigration enforcement efforts by DHS and their agents. Most recently, a lawsuit filed on April 24, 2025 in the federal district court of Massachusetts alleges that these revocations followed "highly publicized arrests of students who had engaged in political protest or expressed views that the government disliked." A class action complaint and motion for preliminary injunction filed in the District of New Hampshire on April 18, 2025 challenges the abrupt terminations of student status, alleging that they violate applicable regulations governing student status termination and failure to maintain student status. Also on April 18, 2025, the U.S. District Court for the Northern District of Georgia granted Plaintiffs' amended motion for a TRO filed in an earlier case and ordered the administration to reinstate Plaintiffs' student status and SEVIS authorization, finding that they stood "to lose their lawful status, access to education, and future career prospects" and finding no harm to the Executive's "control over immigration." On April 25, 2025, the DOJ reversed the terminations, announcing that ICE would reinstate the records of international students whose student visa data had been abruptly terminated.⁹

Executive activity impacting the higher education sector in the first 100 days has been sweeping, implicating fundamental issues of constitutional law, from due process and equal protection to free speech and separation of powers. Stakeholders spanning the higher education landscape, including students, parents, professors' associations, universities, and states, have mobilized to challenge executive orders and Department of Education action in court. Courts have been receptive to these challenges in granting preliminary relief, agreeing with plaintiffs on a variety of constitutional and APA claims that the administration has in many cases exceeded its authority and moved without sufficient process. And as with the challenges to student-visa revocations, we have also seen the administration pivot in the face of these suits' early returns. We cannot predict what the next 100 days will bring, but many of the above cases remain active in pursuit of final relief. We expect many to proceed quickly, and in short order, there will be occasion for appellate courts to weigh in.

Whatever the coming months hold in store, Foley Hoag's Education practice group remains ready to advise higher education stakeholders on navigating and responding to government activity in all forms.

*Note: This alert is not intended to be an exhaustive list of all pending lawsuits. Instead, we focus on legal challenges that address patterns or key areas of activity impacting higher education (as opposed to those primarily impacting K-12). As our roundup here includes matters that are constantly developing, our discussion of cases is only current as of the date of publication.