Campus Event Safety- Practices for Campus Police Managing High-Profile and Controversial Events on Campus
Campus police play a critical role in ensuring the safety, security, and success of high-profile and potentially controversial events on campus. Recent incidents have highlighted the importance of proactive planning, clear protocols, and collaboration with campus stakeholders. This client alert offers practical tools and legal insights for campus law enforcement professionals and university leaders as they prepare to host large events or controversial events on campus with outside speakers.
This alert is the second in our series designed to provide colleges and universities with practical strategies for managing safety and legal risks associated with campus events. Our prior alert on campus event safety is available here. Our goal is to equip higher education leaders with actionable tips, legal insights, and best practices to ensure campus events remain safe, accessible, and consistent with institutional values and legal obligations. These are general recommendations and may not be suitable for every college or university. Institutions should work with legal counsel to develop actionable measures appropriate for their unique campus environment, policies, practices, and applicable law.
Risk management for campus police in managing high-profile or controversial events on campus starts with advance preparation and collaboration with various university departments, ensuring that potential issues are identified and mitigated early. Key risk management strategies for campus police departments include:
Early Coordination both On-Campus and Off-CampusCampus police departments must collaborate with scheduling offices, student affairs, and event organizers (and vice versa) to assess all high-profile and/or potentially controversial events. Using campus event registration forms, campus police and related campus offices are able to collect critical information for risk assessment: expected attendance, speaker profiles, event location, and planned activities.
Depending on the size and scope of the event, campus police should also be coordinating with local law enforcement in the city/town or state, as well as with the speaker’s private security detail (if applicable).
Security Planning and Threat AssessmentCampus police must develop event-specific security plans in consultation with event organizers, local law enforcement, and the speaker’s private security detail (if applicable). Campus police should use standardized tools to assess event risk, considering factors such as anticipated protest activity, speaker notoriety, crowd size and location logistics. These tools allow for risk assessment based on information about the event; however, information considered should not include the speaker’s viewpoint.
As part of this security planning, campus police need to have a designated point person (or group of persons) and assign designated security or police personnel to the event, with clear roles and authority to intervene if needed.
Infrastructure Controls and Crowd ManagementCampuses should consider holding high-risk events in venues where access can be controlled and monitored. Campus police or hired security should work with event organizers to restrict dangerous items, remove objects that could be weaponized, and set up physical barriers if warranted.
Campus event organizers should be made aware of campus policies on signs, amplified sound, and space usage. These policies apply, and should be enforced, regardless of the content of the speech at the event. Event staff, campus police, hired security, local law enforcement, and the speaker’s security detail (if applicable) should be briefed on these policies and how they are enforced on campus and during events.
Communication and TrainingEvent staff, campus police, hired security, local law enforcement, and the speaker’s security detail (if applicable) must all be briefed on emergency procedures, campus policies, and the event-specific security plan.
Depending on the risk profile of the event, tabletop exercises and scenario-based training may be used to prepare for potential protests, disruptions, or emergencies.
Monitoring and ResponseBefore and during the event, the campus should ensure that it is monitoring social media, campus communications, and local intelligence (if applicable) for indications of planned disruptions or threats. This could be led by the campus communications team with campus police support. Any relevant updates should be communicated to event organizers and campus police prior to and throughout the event.
Crisis management is activated when an incident occurs at an event and campus police respond, with swift, coordinated response to protect people, property, and institutional reputation. Key crisis management strategies include:
Activation of Emergency Protocols and Crisis TeamCampus police should be prepared to activate lockdown, evacuation, and emergency medical protocols when necessary. Key to this is ensuring rapid, clear communication with campus leadership, event organizers, and local and state police partners – and to the campus community.
Legal and Compliance ConsiderationsCampus police should remember to appropriately document all law enforcement actions and responses for Clery Act compliance and legal review. Campus legal counsel or outside counsel should be consulted before restricting speech or removing individuals from the event to ensure First Amendment and civil rights obligations are met, and to ensure that the university is complying with its own policies.
Post-Event Debrief and Policy UpdatesThe university should conduct after-action reviews with campus police, event organizers, legal counsel, and university leadership. As a result of this review, the university may want to update its policies and protocols and conduct training based on lessons learned and emerging best practices.
Schools in Pennsylvania Must Notify Parents About Weapons Incidents
On November 6, 2025, Pennsylvania Governor Josh Shapiro signed a new state law (Senate Bill No. 246) that requires schools to notify parents, guardians, and school employees about any incidents involving a weapon on school property or at a school-sponsored activity. This law increases the legal liability for schools that fail to send an alert.
Quick Hits
Pennsylvania has enacted a law requiring K-12 schools, charter schools, and career and technical schools to promptly notify parents, guardians, and school personnel when there is an incident involving possession of a weapon on school property.
Weapons covered by this law may include guns, knives, and other potentially dangerous instruments.
The new law is set to take effect on January 6, 2026.
Senate Bill No. 246 requires public and private K-12 schools, including charter schools and career and technical schools, to send a notification within twenty-four hours by a communication method “likely to reach” parents, guardians, and school employees. The notification can include information that identifies a student involved in the incident only under limited circumstances.
The law applies to incidents where the possession of a weapon violates state law or school policies, including events that occur on school grounds, those directly related to school-sponsored activities (even if held off school premises), and on school transportation. Senate Bill No. 246 refers to other laws that define a weapon to include a “knife, cutting instrument, cutting tool, nun-chuck stick, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.”
The new law does not apply to colleges and universities. However, institutions of higher education in Pennsylvania can establish their own policies regarding weapon possession.
The federal Gun-Free School Zones Act of 1990 prohibits the possession of firearms within 1,000 feet of K-12 public or private schools. However, in 1996, Congress amended the law to limit its application to cases where the firearm has “moved in or otherwise affected interstate or foreign commerce.”
In recent years, there have been numerous school shootings across the country, including an incident in Virginia where a six-year-old elementary student shot his teacher. The teacher was awarded a $10 million jury verdict in a case against the school’s former assistant principal, who allegedly failed to respond to multiple warnings that the student had a gun.
Next Steps
K-12 schools in Pennsylvania may wish to revisit their protocols for notifying staff and parents in the event someone has a weapon on school property, and train staff on the new state law regarding notifications. To ensure that the information reaches the intended recipients, notifications can be sent in various formats, including text messages, emails, and through the school system’s online portal. It is essential to maintain accurate and up-to-date contact information for employees, parents, and guardians.
Many K-12 schools, colleges, and universities already have workplace violence prevention plans that encompass staff training, physical security measures, and systems for easily reporting threats. Similarly, numerous K-12 schools, colleges, and universities have established written policies that prohibit weapons, including guns, on school property. These restrictions typically apply to employees, students, parents, and volunteers.
Leah J. Shepherd contributed to this article
Federal Court Adopts Stricter Standard for Employer Liability in Third-Party Harassment Cases
On October 31, 2025, a federal district court ruled that the University of Pennsylvania could not be held liable for harassing behavior by a student toward a research associate. The case sheds light on an evolving standard for employer liability for harassment by non-employees.
Quick Hits
In O’Neill v. University of Pennsylvania, the U.S. District Court for the Eastern District of Pennsylvania concluded the university was not liable for the harassment because it did not intend for the harassment to happen.
The court found the research associate satisfied some of the criteria for a hostile work environment and sexual harassment claim, but failed to prove the university was liable.
The court relied on a recent ruling in the Sixth Circuit, which held that an employer is not liable for a third party’s harassment of an employee unless it intended to cause or allow the harassment.
Background
In 2022, the female plaintiff began working as a research associate at the University of Pennsylvania’s robotics lab and as a teaching assistant for robotics classes. She alleged a male student harassed and physically intimidated her by blocking her path to her desk, hovering over her desk, demanding answers to questions in assignments, and waiting for her outside the robotics lab. She also claimed he sent her several inappropriate messages, including “I’m going too deep into depression. Please come home and stay with me if you can” and “Love you so much babe . . . come soon,” along with a heart emoji and a kissing face emoji. The plaintiff reported these messages to her supervisor on February 22, 2023.
The university promptly removed the student from the lab and established a safety plan for the plaintiff. This plan allowed the student to use the lab only when the plaintiff’s supervisor was present and prohibited the student from communicating with the plaintiff outside of an academic setting. However, the plaintiff wanted a guarantee that she would not interact with the student and that he would not access to the lab even when she was not working there, according to court documents.
The plaintiff ceased working there after February 22, 2023, but the university continued to provide her with pay and benefits. The university stated it would consider her to have abandoned her job if she did not return to work by March 22, 2023, or formally apply for a leave of absence. The plaintiff filed a complaint with the Philadelphia Commission on Human Relations on May 5, 2023.
She received a preliminary job offer from a technology company, but the company rescinded its offer after checking her references. She had listed the robotics program director on her resume. The program director said he only provided the technology company with information about her degree and claimed he did not know about her formal complaint until later. Subsequently, she amended her complaint to include a retaliation claim. She then sued the university for allowing a sex-based hostile work environment, for constructive discharge, and for retaliation under Title VII of the Civil Rights Act of 1964 and the Philadelphia Fair Practices Ordinance.
The Court’s Ruling
Title VII prohibits workplace harassment based on sex, race, color, religion, and national origin. To establish a harassment claim under Title VII, an employee must demonstrate that the conduct was sufficiently severe or pervasive to create a hostile work environment or that enduring the offensive behavior became a condition of continued employment.
To hold an employer liable for a hostile work environment based on sexual harassment, the court identified the following five criteria that must be met:
The employee suffered intentional discrimination because of their sex.
The discrimination was severe or pervasive.
The discrimination had a detrimental effect on the employee.
The discrimination would detrimentally affect a reasonable person in similar circumstances.
There is a legal basis for employer liability.
The university filed a motion for summary judgment, arguing that the student’s behavior was not severe or pervasive. However, the court disagreed, stating, “Physically threatening behavior— especially when coupled with unwanted comments or attention—might tip the scale towards finding harassment to be severe or pervasive when considering the totality of the circumstances.”
The university argued it was not liable for creating a hostile work environment based on a recent ruling from the U.S. Court of Appeals for the Sixth Circuit in Bivens v. Zep Inc., which held that an employer is liable for a third party’s harassment of an employee only when it intends for such harassment to occur. As a result, the district court granted summary judgment in favor of the university, concluding it could not be held liable for harassment by non-employees unless it either “desired” the harassment or was “substantially certain” it would occur.
In contrast, the First, Second, Fourth, Eighth, Ninth, Tenth, and Eleventh Circuit Courts have held employers liable for a third party’s harassment of an employee if the employer “knew or should have known” about the conduct and did not take action to address it. Similarly, guidance from the U.S. Equal Employment Opportunity Commission supports employer liability when they “knew or should have known” about harassment and failed to take corrective action.
Regarding the retaliation claim, the district court found the research associate did not show that the program director knew about her complaint when he spoke to the technology company. Thus, the court dismissed the retaliation claim along with the harassment and hostile work environment claims.
Next Steps
Employers should be aware of the current circuit split regarding employer liability for harassment by nonemployees, such as customers, clients, volunteers, or students. The Sixth Circuit has established a higher standard for proving employer liability by focusing on intent. In contrast, the “knew or should have known” standard used in other circuit courts may be easier for plaintiffs to meet.
It is important for employers to respond promptly and effectively to harassment complaints and to ensure that employees do not face retaliation for making such complaints. Employers should consider reviewing their written policies and training programs to ensure they clearly address harassment and outline an effective complaint procedure. Staying informed about legal developments in this area is important for understanding potential implications, depending on the state and circuit.
District Court Rules Non-Profit Employers Executing Employment Agreements May Evade Chapter 93A Liability
On Sept. 22, 2025, Judge Sorokin of the District of Massachusetts dismissed all claims against Harvard College arising from a former faculty member’s suit against the university.
Plaintiff James Wines kept an appointment as an Instructor of Psychiatry at Harvard Medical School for almost 30 years while also employed at Mass General Brigham, a Harvard-affiliated hospital. He maintained these positions at the same time, and his appointment at Harvard was conditioned upon his employment at Mass General Brigham—without his hospital appointment, the employee handbook clarified his university appointment would be terminated.
When Mass General Brigham instituted a mandatory vaccine policy for all of its employees during the COVID-19 pandemic, Wines refused to comply, and was subsequently terminated from his position at the hospital. As was required according to the Harvard employee handbook, Harvard then terminated Wines from his university position.
Wines sued the university under a list of theories, including but not limited to, breach of contract, constitutional claims, civil conspiracy, and unfair business practices under Chapter 93A. The Chapter 93A claim, specifically, was dismissed because Wines did not sufficiently allege that Harvard was “engaging in trade or commerce,” as required by the statute, when it acted on its employment handbook’s policies.
In its ruling, the District Court relied on Massachusetts cases that hold for two major propositions. The first is that charitable institutions, such as Harvard, are not engaged in trade or commerce when they “undertake[] activities in furtherance of its core mission.” Linkage Corp. v. Trs. of Bos. Univ., 679 N.E.2d 191, 209 (Mass. 1997). Second, “employment agreements between an employee and the organization of which he is a member do not constitute ‘trade’ or ‘commerce.’” Manning v. Zuckerman, 444 N.E.2d 1262, 1265 (Mass. 1983). The District Court felt that case law thus definitively answered the question of Chapter 93A liability in the negative because Harvard was executing an employment agreement in furtherance of its core mission as a non-profit university. Wines himself alleged that the sole reason Harvard terminated him was because of his termination at Mass General Brigham, and thus, no Chapter 93A claim could continue.
Generally, non-profits and charitable institutions’ acts and practices are immune from the reach of Chapter 93A if motivated by their own policies and mission. However, if they act on motivations that exceed those policies and mission, they may be veering into Chapter 93A territory and straying from the safe haven of acting “in furtherance of its core mission.”
Court Guidance: Public Allegations and Institutional Response in Recent Title IX Litigation
In recent years, the use of the term “rapist” on campus has sparked significant legal debate in Title IX higher education cases. Two notable cases, Nungesser v. Columbia University and the more recently decided Doe v. University of Maryland, provide contrasting judicial perspectives on this issue. In this legal update, we examine these cases, focusing on their legal reasoning, outcomes, and implications for educational institutions.
Nungesser v. Columbia University
In Nungesser v. Columbia University, a student at Columbia University, was accused of rape by a fellow student. Despite being found “not responsible” by Columbia’s Office of Gender-Based Misconduct, the Complainant continued to publicly label the Respondent as a “rapist” through her senior thesis project, the Mattress Project, which gained widespread media attention. The Respondent filed a lawsuit against Columbia, alleging that the University violated his Title IX rights by allowing the Complainant to continue her campaign against him.
The United States District Court for the Southern District of New York eventually dismissed the Respondent’s Title IX claim, concluding that he failed to demonstrate that the harassment was based on his gender. The Court emphasized that the term “rapist” was used in the context of specific allegations rather than as a gendered slur. The Court also noted that Nungesser did not sufficiently allege a deprivation of educational opportunities, as required under Title IX. Columbia later settled with the Respondent out of court.
Doe v. University of Maryland
Doe v. University of Maryland involved a student at the University of Maryland who was similarly accused of sexual assault and subsequently exonerated by the University’s Title IX process. As in Nungesser, the Respondent faced a public campaign labeling him a “rapist,” which, in this case, led to his exclusion from campus activities, including the club lacrosse team. The Respondent sued the University of Maryland, claiming deliberate indifference to student-on-student harassment under Title IX.
The United State District Court for the District of Maryland found that the Respondent had presented sufficient evidence to proceed with his Title IX claim. The Court found that the persistent labeling of the Respondent as a “rapist” constituted sex-based harassment, as it was aimed at humiliating and ridiculing him based on his alleged sexual conduct. The Court also found that the harassment deprived the Respondent of educational benefits, as it led to his exclusion from extracurricular activities.
Analysis of the Legal Reasoning and Outcomes of these Cases
The divergent outcomes in these cases highlight the nuanced application of Title IX. In Nungesser, the Court focused on the intent behind the use of the term “rapist” concluding that it was not used as a gendered slur but rather as a factual accusation, albeit false. The Court also emphasized the lack of a systemic impact on the Respondent’s educational experience.
Conversely, the Doe Court recognized the term as inherently sex-based when used to publicly shame and exclude the Respondent from educational opportunities. The Court found that the University of Maryland’s failure to address the harassment was “clearly unreasonable,” thus meeting the standard for deliberate indifference under Title IX.
Implications for Institutions of Higher Education
These cases underscore the importance of context and intent in these types of Title IX claims. Institutions must strike a balance between protecting speech and ensuring a non-discriminatory and non-retaliatory environment. This requires clear policies and procedures that address the use of potentially harmful language while safeguarding students’ rights.
As a result of these cases, institutions of higher education should carefully consider the potential for actionable sex-based harassment claims when students are publicly labeled in this manner. As part of this analysis, institutions should carefully evaluate the circumstances surrounding the use of such terms and the impact on the accused student’s educational experience.
Conclusion
The contrasting decisions in Nungesser and Doe illustrate the complexities of Title IX cases that involve students using the term “rapist” to refer to a Title IX Respondent. Educational institutions must navigate these challenges with sensitivity and a commitment to equity, ensuring compliance with Title IX while protecting the rights of all students. By adopting clear policies, ensuring procedural fairness, and proactively managing risks, institutions can navigate these challenges effectively.
ACTS Targets Selective Institutions: What Counsel and Admissions Need to Know
On November 13, 2025, the U.S. Department of Education proposed adding the “Admissions and Consumer Transparency Supplement (ACTS)” to IPEDS, narrowing applicability to selective four-year institutions, introducing targeted exemptions, and updating the collection window to 2025–26 through 2026–27. Public comments are due December 15, 2025.
Quick Hits
The U.S. Department of Education’s updated IPEDS data collection proposal clarifies that ACTS would only apply to selective four-year institutions.
Institutions that both admit 100 percent of applicants and award no non-need-based aid in a given collection year would be exempt from the data collection for that year.
The Education Department underscores the ACT’s purpose to identify race-based preferencing in admissions and non-need-based aid practices, signaling potential risk-based Title VI of the Civil Rights Act of 1964 scrutiny.
Public comments are due December 15, 2025.
The Education Department’s notice proposes that ACTS would apply to four-year selective institutions and explicitly exempt otherwise eligible institutions that both admit 100 percent of applicants and do not award non‑need‑based aid for a given collection year. The changes stem from the public response to the Education Department’s Direct Questions in the prior sixty-day notice associated with the ACTS supplement, issued in August 2025. Comments on that proposal closed October 14, 2025.
The Education Department reiterated that ACTS is intended to collect information indicating whether institutions “are using race‑based preferencing in admissions,” citing the August 7, 2025, presidential memorandum directing expansion of required IPEDS reporting and the Education Department secretary’s same‑day directive to initiate changes in the 2025–26 school year.
Selective institutions—and competitive graduate and professional programs within broader institutions—should anticipate heightened transparency expectations around admissions and scholarship practices, potential risk‑based Title VI of the Civil Rights Act of 1964 reviews tied to the proposed data requirements, and closer scrutiny of non‑need‑based aid. The Education Department’s rationale references recent directives, including the August 7, 2025, presidential memorandum and the secretary’s same‑day directive to initiate changes in the 2025–26 school year, reinforcing the enforcement‑oriented posture of the proposal.
Next Steps
Selective four-year institutions should anticipate continued emphasis on admissions and scholarship transparency, potential risk‑based Title VI reviews anchored in the proposed new data requirements, and closer scrutiny of non‑need‑based aid practices. Institutions that have mapped data availability, implemented privacy controls, clarified program-level selectivity, and conducted privileged review of admissions and aid data across the reporting periods will be better prepared to adjust to whatever ACTS ultimately requires and to withstand heightened Education Department scrutiny of admissions and scholarship practices.
The Compact for Academic Excellence in Higher Education
On Wednesday, October 1, 2025, the White House sent letters to nine institutions of higher education inviting them to sign onto a “Compact for Academic Excellence in Higher Education.” The administration requested feedback on the Compact by October 20, 2025. With that deadline now passed, this alert reviews the key provisions of the proposed Compact and summarizes how the higher education sector has responded thus far.
Key Provisions of the Compact
The Compact offers preferential consideration for certain federal funding and benefits in exchange for institutions’ compliance with a specific set of policy requirements. Some of these policies are already required by law, while others introduce new obligations for signatory institutions. These requirements are summarized below:
1. Equality in Admissions
Except for institutions for a specific sex or religious denomination, signatories agree to not consider sex, ethnicity, race, nationality, political views, sexual orientation, gender identity, religion, or proxies in admissions or financial support decisions.
Signatories must publish objective admissions criteria on institutional websites for applicants and the public.
Signatories must require all undergraduate applicants to take a “widely-used standardized test” (e.g., SAT, ACT).
Signatories must report anonymized applicant data (including GPA and test scores) by race, national origin, and sex.
2. Marketplace of Ideas and Civil Discourse
Signatories will foster a campus environment with a “broad spectrum of ideological viewpoints and no single ideology dominant.”
Signatories will revise governance structures, including “transforming or abolishing institutional units that punish, belittle, or spark violence against conservative ideas.”
Signatories must adopt policies protecting academic freedom and recognize that “academic freedom is not absolute.”
Signatories commit to using lawful force to maintain order and prevent disruptions to classes, study areas, or access based on protected characteristics.
Signatories will adopt policies “prohibiting incitement to violence, including calls for murder or genocide, or support for entities designated by the U.S. government as terrorist organizations”
Signatories will take steps to prevent heckling, harassment, or obstruction based on students’ race, ethnicity, nationality, or religion.
Signatories pledge to “vigorously enforce” policies and rights with respect to free speech and expression.
3. Nondiscrimination in Faculty and Administrative Hiring
Signatories commit to meritocratic, objective, and measurable criteria for faculty and staff hiring, advancement, and reappointment.
Signatories must not consider sex, ethnicity, race, national origin, disability, or religion in employment decisions, except as permitted by law and anti-discrimination statutes.
4. Institutional Neutrality
Signatories will “maintain institutional neutrality” on societal and political issues at all levels of the university.
Signatories will require employees acting in an official capacity to “abstain from actions or speech relating to social and political events” unless such events directly impact the university.
Signatories will apply neutrality policies consistently across departments, colleges, centers, and institutes.
5. Student Learning
Signatories “commit to grade integrity” by prohibiting inflation or deflation of grades for non-academic reasons.
Signatories will “use public accountability mechanisms” to demonstrate commitment to grade integrity.
6. Student Equality
Signatories will treat students as individuals, not based on immutable characteristics, “with exceptions for sex-based privacy, safety, and fairness.”
Signatories will define and interpret the terms male, female, woman, and man “according to reproductive function and biological process.”
Signatories will prohibit unequal treatment in grading, access to buildings, scholarships, and university resources.
Signatories will maintain clear and consistent disciplinary standards for all students, faculty, and staff.
7. Financial Responsibility
Signatories must freeze tuition rates for American students for the next five years.
Signatories will publicly post average earnings statistics for graduates in each academic program.
Signatories will refund tuition to undergraduates who drop out during their first academic term.
Signatories with endowments over $2 million per undergraduate must waive tuition for “admitted students pursing hard science programs.”
Signatories must accept full transfer credits from the Joint Service Transcript for military service members and veterans.
8. Foreign Entanglements
Signatories must maintain an anti-money laundering (AML) and Know Your Customer (KYC) programs and other applicable laws, including Section 117 of the Higher Education Act.
Signatories will cap international student enrollment to no more than 15% of undergraduate population, and no more than 5% from any one country.
Signatories will select foreign students “on the basis of demonstrably extraordinary talent . . . and screen out students who demonstrate hostility to the United States, it allies, or its values.”
Signatories will provide all known information about foreign students (including discipline records) upon request to the Departments of Homeland Security and State.
Signatories will disclose all direct and indirect funding from any foreign institutions and individuals.
Enforcement of the Compact’s requirements would be overseen by the Department of Justice. Institutions found in violation could face significant fiscal penalties, including clawbacks of federal and private funds associated with the Compact.
Recent Developments and Criticism
Of the nine universities initially approached, none have thus far agreed to sign the Compact, citing concerns related to academic freedom, institutional independence, and the principle that research funding should be based on merit rather than compliance with federal policy priorities.[1]
In response to criticisms, Education Secretary Linda McMahon and other federal officials have met with university leaders and indicated that the Compact may be subject to revision. At the same time, the administration has stated that any institution may choose to sign the agreement in its current form.
Observers have identified several issues that may require careful consideration by institutions. One significant area of concern is the potential for increased federal involvement in university governance and decision-making. Higher education organizations and legal experts have noted that such involvement could affect long-standing principles of institutional autonomy.
Additionally, the Compact does not specify the statutory authority under which the federal government would grant preferential access to funding programs or limit access for institutions that do not participate. Critics have also raised concerns about the vagueness of certain requirements, which may make compliance assessments difficult and increase the risk of enforcement action. Enforcement mechanisms such as financial penalties and fund clawbacks may raise questions about due process and protections under existing federal law, as well as potential liability under the False Claims Act for institutions found to be in non-compliance.
Where Does Higher Education Go From Here?
It remains uncertain whether any institutions will sign onto the Compact as currently drafted. In the meantime, all institutions of higher education are advised to review the Compact’s key provisions and assess whether their current policies or programs may need to be revised to ensure compliance with existing federal and state law, or to mitigate the risk of federal enforcement actions. Institutions should work with legal counsel to develop actionable next steps appropriate for their unique campus environment, policies, practices, and applicable law.
[1] After President Trump, in a social media message, extended the invitation to sign the Compact to any U.S. university, the New College of Florida issued a press release indicating that “[w]hen the President asks” for its signature, they will be “first in line.”
Title VI Oversight Meets Data Reality- Comments on the ACTS Proposal Analyzed—Key Takeaways for Higher Education
With the comment period now closed on the U.S. Department of Education’s proposed Admissions and Consumer Transparency Supplement (ACTS) to its Integrated Postsecondary Education Data System (IPEDS), more than 3,400 submissions reflect broad participation across higher education and the public. Announced on August 15, 2025, the proposed data collection would add a supplement to IPEDS requiring six years of disaggregated admissions, aid, and outcomes data from selective four-year institutions to support transparency and compliance with Title VI of the Civil Rights Act of 1964.
Quick Hits
The comment period on the Education Department’s proposed Admissions and Consumer Transparency Supplement (ACTS) to IPEDS closed on October 14, 2025, drawing thousands of comments by universities, higher education associations, community and technical colleges, career schools, graduate and professional programs, civil rights and policy organizations, researchers, and individual citizens.
Commenters recommended limiting ACTS to truly selective institutions and treating graduate/professional programs separately.
Institutions anticipate risk-based reviews tied to new admissions and scholarship data if ACTS advances, especially at selective programs and professional schools.
Background
As proposed, the ACTS supplement would require selective four-year institutions to report six years of retrospective data (2020–21 through 2025–26) on applicants, admits, and enrollees, disaggregated by race and sex and further broken down by grade point average (GPA) and test score quintiles, income, Pell grant eligibility, first‑generation status, application round, aid offered/received, and graduation outcomes. Graduate reporting would be by Classification of Instructional Programs (CIP).
An analysis of the comments reveals broad support for transparency. However, the majority of commenters urged the Education Department to narrow the scope to genuinely selective institutions and to treat graduate/professional programs separately. Core concerns centered on burden and feasibility, unclear definitions, test‑optional data gaps, GPA variability, privacy risks from small cells (i.e., heightened risks that cells of data with few student counts may increase the likelihood that students are identified in violation of their privacy rights), and cybersecurity. Many asked the Education Department to delay until 2027–28, pilot with volunteers, publish detailed technical specs, and provide funding or targeted assistance. Stakeholders also urged alignment with existing IPEDS components and standards to reduce duplication.
Next Steps
Higher education institutions—particularly selective four-year schools and competitive graduate/professional programs—may want to prepare now for some level of enhanced admissions and scholarship transparency. Even if ACTS is narrowed or gradually implemented, the trajectory points toward expanded risk-based Title VI oversight anchored in detailed data. The next steps by the Education Department will determine the precise contours of reporting and enforcement. Institutions that have clarity on data availability, privacy controls, and program-level selectivity will be best positioned to adapt to whatever form ACTS ultimately takes.
District of Massachusetts Allows Higher-Ed Student Data Breach Claims to Survive
In a recent blog post, we explained how Webb v. Injured Workers Pharmacy, LLC has become a touchstone for courts analyzing Article III standing in data breach class actions, citing Shea v. American International College as a recent example. This post explores the Shea decision in greater depth.
On September 5, 2025, Judge Angel Kelley of the U.S. District Court for the District of Massachusetts issued a mixed ruling on a motion to dismiss in Shea v. American International College. The decision reflects the developing contours of data breach litigation in this jurisdiction, particularly with respect to standing, the economic loss doctrine, and the viability of implied contract and invasion of privacy claims.
How the AIC Cyberattack Sparked a Student Class Action
The case arises out of a late-2023 data breach at American International College (“AIC”), during which attack hackers allegedly exfiltrated over 5,000 gigabytes of unencrypted data containing the personal information of more than 11,000 current and former students over nineteen days. AIC discovered the activity, engaged a forensic firm, and mailed breach notices in May 2024.
Plaintiff Kelly Shea, a former student, brought a putative class action asserting negligence, breach of implied contract, unjust enrichment, invasion of privacy under G.L. c. 214, § 1B, Chapter 93A, and declaratory judgment. AIC moved to dismiss across the board, arguing lack of Article III standing and failure to state a claim.
Concrete Harm: How Actual Misuse, Mitigation and Distress Secured Standing
The Court rejected AIC’s threshold standing challenge. Plaintiff alleged that hackers exfiltrated her Social Security number and other identifiers, which were later trafficked on the dark web, and that a fraudulent health insurance claim was subsequently submitted in her name. She also alleged mitigation costs and emotional distress, including anxiety and sleep loss. The court held that these allegations, taken together, went beyond speculative future risk and established concrete injury, traceability, and redressability, relying on Webb and distinguishing cases where plaintiffs pled only an increased risk of future harm.
Emotional Distress Sidesteps Economic Loss Doctrine in Negligence Claim
The negligence claim survived in part. The court held that AIC owed a duty to employ reasonable safeguards as an institution that collects and stores sensitive PII as a condition of enrollment. Allegations of substandard cybersecurity practices—unencrypted storage, weak access controls, missing MFA, inadequate training and defenses—plausibly stated a breach of that duty. Causation was adequately pled given the alleged sequence from breach to misuse and resulting mitigation efforts and emotional distress. While the economic loss doctrine generally bars recovery for purely economic harms, plaintiff’s emotional distress plausibly qualified as personal injury at the pleading stage, allowing the negligence claim to proceed (with limitations on purely economic mitigation damages not tied to that injury).
Tuition and Trust: Unjust Enrichment Claim Survives Based on Security Expectations
The Court denied dismissal of the unjust enrichment claim. Although plaintiff did not identify a specific “data security fee,” she plausibly alleged that tuition and fees conferred a benefit reasonably expected to include the cost of adequate data security. AIC allegedly retained that benefit while failing to provide reasonable protections. The court found these allegations analogous to In re Shields Health Care Grp., Inc., where plaintiffs’ expectation that service payments included data protection was sufficient to state a claim. At the pleading stage, and pled in the alternative to contract claims, plaintiff’s allegations were sufficient.
Court Allows Declaratory Judgment Claim Amid Ongoing Data Risks
The court allowed the declaratory judgment claim to proceed, finding a live controversy given alleged ongoing risks from data that remains in circulation on the dark web and in AIC’s possession, along with continuing mitigation efforts. Discretionary relief may be revisited on a fuller record.
The Dismissed Claims: Implied-in-Fact Contract, Invasion of Privacy and Chapter 93A
The implied-contract theory failed because the complaint did not allege facts showing mutual assent to specific data-security obligations. General references to privacy policies and institutional practices, without allegations of affirmative acceptance or conduct evidencing agreement, were insufficient to establish an implied-in-fact contract. The invasion of privacy claim under G.L. c. 214, § 1B, was also dismissed, with the court reiterating that the statute requires intentional conduct, not negligent failure to prevent third-party access. Plaintiff voluntarily dismissed her Chapter 93A claim for failure to serve the statutory demand letter.
Data Breach Litigation Lessons for Colleges, Companies, and Counsel
The Shea decision underscores that a claim based on fraudulent misuse tied to stolen PII, combined with mitigation efforts and distress, distinguishes actionable injury from speculative risk. The First Circuit’s decision in Webb continues to shape standing analysis: allegations of both misuse and mitigation suffice, while speculative risk alone does not. The case also serves as a reminder that the economic loss doctrine is not absolute. The doctrine remains a key defense in negligence claims based on data breaches, but courts may permit claims to proceed if plaintiffs allege concrete emotional distress, even when damages are purely financial. For these reasons, defendants should scrutinize and challenge conclusory distress allegations.
Another takeaway: privacy policies alone rarely create implied contracts. Institutions should nonetheless avoid language that implies contractual obligations absent clear assent. Unjust enrichment claims remain viable when the nature of the relationship supports a reasonable expectation that fees fund data security. Institutions should build a clear record on what payments actually cover. For risk management, document security controls, enforce MFA and encryption, train personnel, and expedite breach notifications to reduce exposure related to both standing and merits. These measures also address forward-looking relief, as declaratory or injunctive claims may survive if plaintiffs allege ongoing risk. Robust incident response and remediation undercut these claims.
As data breach class actions continue to proliferate, Shea reflects the evolving landscape in the First Circuit. The decision’s reasoning highlights how courts in the District of Massachusetts are parsing the boundaries between actionable injury, recoverable damages, and claims that will not survive Rule 12 scrutiny.
Free Speech or Misgendering? Sixth Circuit Strikes Down School Pronoun Policy
Can a public school discipline students for using pronouns that reflect a classmate’s sex assigned at birth, rather than their gender identity? According to the Sixth Circuit’s en banc decision issued November 6, 2025, the answer is no—not without violating the First Amendment.
The Court struck down an Ohio school district’s policy prohibiting students from using “biological pronouns” when referring to transgender or nonbinary peers. The majority held that such restrictions constitute viewpoint discrimination and compelled speech, running afoul of the First Amendment protection for expression on matters of public concern.
The Court emphasized that while schools may act to prevent harassment or bullying, “they may not skew this debate by forcing one side to change the way it conveys its message or by compelling it to express a different view.” The district had introduced no evidence that the use of what the court referred to as “biological pronouns” would materially disrupt school functions or meet the legal definition of harassment.
The case arose after a parent asked administrators whether students could be disciplined for refusing to use a transgender classmate’s preferred pronouns. The district claimed “purposefully referring to another student by gendered language contrary to their identity” would be considered discrimination under applicable Board policy. That response prompted Defending Education—a national organization representing parents of school-aged children—to sue on behalf of four member families. Their children held religious and scientific beliefs that sex is immutable and wished to use pronouns consistent with sex assigned at birth, and that policies on harassment, bullying, and “discriminatory language” chilled their speech and compelled them to affirm views they rejected.
The district court denied a preliminary injunction, and a Sixth Circuit panel affirmed. But the appellate court granted rehearing by the full court, vacated the panel opinion, and ultimately sided with Defending Education, holding that the school’s policies likely violated the First Amendment. Mandating preferred pronouns discriminates between competing viewpoints by elevating one belief system (that gender identity determines pronouns) and penalizing the contrary belief (that pronouns should comport with sex assigned at birth).
Key Takeaways:
Schools must meet a high bar (“substantial disruption”) to restrict student speech—mere offense is not enough. The decision clarifies that emotional distress or disagreement from listeners—without concrete evidence of disruption or hostile conduct—does not justify silencing opposing viewpoints.
The injunction bars punishing students for ordinary pronoun use, not for conduct that meets the legal threshold for bullying or harassment. Schools retain authority to intervene in targeted, abusive, or repeated conduct.
California Bans Ultraprocessed Foods in Schools
Key Takeaways
What happened: California enacted the first state ban on certain ultraprocessed foods (UPFs) in public school meals.
Who’s impacted: School food authorities, K–12 food vendors, and manufacturers selling into the California school market; national brands should consider ripple effects in other jurisdictions.
Why it matters: California’s framework arrives amid federal MAHA activity and a rising state patchwork of scrutiny over food chemicals and UPFs; alignment and reformulation planning will be critical.
What to do now: Inventory school-channel SKUs, map additives that could drive a UPF designation under the California Act, and build a reformulation and labeling plan to meet California’s 2028–2035 milestones.
California Governor Newsom signed the Real Food, Healthy Kids Act into law on October 8, 2025, making California one of the first states to phase out “ultraprocessed foods” from school lunches, with the reporting phase beginning in June 2028. The phaseout itself will begin in the 2029-2030 school year and finish in the 2035-2036 school year. This comes after Governor Newsom’s January 3, 2025 Executive Order instructing the California Department of Public Health (CDPH) to provide recommendations to the Governor’s Office regarding potential action to limit the harms associated with ultraprocessed food. Additionally, because California is one of the first states to define “ultraprocessed foods” by statute and is often at the forefront of state laws regulating the use of certain chemicals and types of foods, food manufacturers and other stakeholders should follow this area closely to see whether other states follow suit.
What are Ultraprocessed Foods?
There is no uniform legal definition of ultraprocessed foods (UPFs). In September 2025, the Make America Healthy Again (MAHA) Commission released the “Make Our Children Healthy Again Strategy.” The report discussed the current state of UPF use in America and noted that while there is no universally accepted definition of UPFs, the term “is most commonly associated with the NOVA food classification system, ‘industrially manufactured food products made up of several ingredients (formulations) including sugar, oils, fats and salt and food substances of no or rare culinary use.’” The MAHA Strategy also highlighted the U.S. Food and Drug Administration’s (FDA) and U.S. Department of Agriculture’s July 2025 request for information to help develop a uniform UPF definition.
California’s new law defines “ultraprocessed foods” expansively, to include any food or beverage that contains a substance listed in FDA’s Substances Added to Food database that has both certain FDA-defined technical effects and “high amounts” (as defined in the bill) of saturated fat, sodium, or added sugar. The technical effects that may cause a product to be considered a UPF in California include surface-active agents; stabilizers and thickeners; propellants, aerating agents, and gases; colors and coloring adjuncts; emulsifiers and emulsifier salts; flavoring agents and adjuvants; flavor enhancers; and nonnutritive sweeteners. The law carves certain additives or ingredients out from its UPF definition, such as salt, spices, and natural color additives, which will not, by themselves, cause a food to be classified as a UPF. The law further requires the California Department of Public Health (CDPH) to adopt regulations defining “ultraprocessed foods of concern” and “restricted school foods,” which must be phased out of school foods on different timelines.
Earlier this year, Arizona passed the “Arizona Healthy Schools Act,” which, like California’s new law, bans schools from selling ultraprocessed foods, though with a much narrower definition. Arizona’s law focuses on foods and beverages that contain one or more of a list of eleven ingredients primarily composed of synthetic food dyes. This law will take effect in the 2026-2027 school year—a much more aggressive timeline. A number of other states considered legislation similar to Arizona’s in 2025, though none have enacted legislation.
Implementation Timeline
The Real Food, Healthy Kids Act’s aim is to phase out UPFs in schools over time, starting in the 2029-2030 school year, with a full ban going into effect by 2035. There are two timelines of note in the Act: the reporting and regulatory timeline and the phaseout timeline. If a school is in noncompliance with this Act, said school will become ineligible for state meal reimbursement.
Regulatory
February 1, 2028: Vendors must begin annual reporting to CDPH. The reports for each food product sold to a school in a given calendar year must include product quantities, the name of the product, whether the product is a UPF, whether the product is a restricted school food or a UPF of concern, the category or categories of food to which the product belongs, the average total calories in each food product sold to schools that year, the ingredients, and the nutritional facts.
Vendor reports will be due annually through February 1, 2032.
The statute does not clarify what information vendors need to report in February 2028 if CDPH has not yet promulgated regulations to define “ultraprocessed foods of concern” or “restricted school foods.”
June 1, 2028: CDPH must adopt regulations to define “ultraprocessed foods of concern” and “restricted school foods”.
June 1, 2028: CDPH must collaborate with the California Department of Education to submit to the Legislature a written report analyzing vendor-submitted data, phaseout progress, feasibility, and recommendations.
CDPH reports will be due annually through July 1, 2032.
CDPH must review and, as needed, update the definitions of “UPFs of concern” and “restricted school foods” every five years. If a revision would add items to either list, the new restriction’s operation is delayed by three years to allow time to comply.
Phaseout
December 31, 2027: “Competitive foods” (i.e., all foods and beverages offered for sale to students on school campuses during the school day other than reimbursable school meals) may not contain the synthetic color additives Blue 1, Blue 2, Green 3, Red 40, Yellow 5, Yellow 6.
California enacted the ban in 2024 and reaffirmed it through this legislation.
July 1, 2029: Schools must begin phasing out restricted school foods and ultraprocessed foods of concern.
July 1, 2032: Vendors may not offer restricted school foods or UPFs of concern to schools.
July 1, 2035: School-provided “nutritionally adequate” meals and competitive foods and beverages may not include restricted school foods or UPFs of concern, with some exemptions for meals and competitive foods (but not competitive beverages) provided through USDA’s “Foods in Schools” program.
Food manufacturers should begin to review their portfolios to plan for these new reporting and phaseout requirements, as well as for potential new laws that may follow. Reformulation may be necessary to reduce liability under these changing circumstances.
Best Practices for College and University Employers When Conducting Reductions in Force
Reductions in force (RIFs), also referred to as layoffs, downsizing, or restructuring, remain one of the most challenging workforce management decisions college and university employers face. Beyond the operational and financial considerations, RIFs carry significant legal, reputational, and strategic risks and considerations. Institutions must carefully navigate federal, state, and local laws, as well as policies and procedures unique to higher education such as tenure and faculty handbooks, while also ensuring that their actions are fair, transparent, and sensitive to affected staff and faculty.
Below are key best practices and considerations institutions should keep in mind when planning and executing a RIF.
1. Employment Laws, Policies, and Contracts
Several employment laws intersect with RIFs, making compliance a critical priority:
Title VII of the Civil Rights Act and other anti-discrimination statutes (such as the Age Discrimination in Employment Act and the Americans with Disabilities Act) prohibit institutions from making termination decisions based on protected characteristics like race, sex, age, disability, or national origin.
State and local laws may expand protections (e.g., covering sexual orientation, gender identity, or caregiver status) or impose additional requirements around notice, severance, and earned leave payouts.
National Labor Relations Act (NLRA) protections may apply if a unionized workforce is involved, potentially requiring bargaining over the effects of a RIF. Unionized faculty and staff may have additional procedural protections, notice requirements, and severance provisions in their collective bargaining agreements.
Higher education employers should also review any policy and contractual obligations. The institution may have policies or practices around standard severance packages for staff terminations. High-level administrators, including but not limited to college presidents, may also have executive employment agreements with notice requirements, board votes, and payout or severance benefits. Faculty terminations are likely based on faculty teaching agreements and/or the provisions in faculty handbooks and special attention needs to be paid to concerns about academic freedom..
2. RIF-Specific Laws – WARN Act and State Mini-WARN Laws
The federal Worker Adjustment and Retraining Notification (WARN) Act requires certain employers to provide 60 days’ advance notice of mass layoffs or plant closings. Key considerations include:
Coverage: Applies to employers with 100 or more full-time employees.
Triggering Events: Plant closings involving 50 or more employees or layoffs affecting at least 33% of the workforce and 50 employees (or 500 employees at a single site).
Notice Obligations: Employees, unions, and local government agencies must be notified.
Several states, such as California, New York, and New Jersey, have mini-WARN laws that impose stricter thresholds or longer notice periods. Institutions must confirm their obligations under both federal and state statutes.
3. Conducting a Disparate Impact Analysis
Even when employers use neutral selection criteria for layoffs, they may inadvertently create a disparate impact on employees in legally protected categories. A disparate impact analysis is a critical risk mitigation tool:
Step 1: Identify Selection Criteria – Common factors include performance, skills, tenure, and redundancy of roles.
Step 2: Analyze the Demographics – Employers should evaluate whether selection disproportionately affects groups based on age, sex, race, or other protected characteristics.
Step 3: Adjust as Needed – If significant disparities exist, employers may consider revising criteria or exploring alternatives to minimize risk of a discrimination claim.
Documenting the decision-making process and analysis is key to defending against potential discrimination claims. Employers should work with outside legal counsel when doing any self-critical analyses, including disparate impacts, to maximize protection.
Higher education employers should be aware that certain selection criteria may have unintended disparate impacts on employees in legally protected categories. For example, selection criteria based on tenure status or rank may have a disparate impact on junior faculty or non-tenure track faculty which may tend to be more diverse.
4. Severance Agreements and Releases
Providing severance pay and release agreements can help ease the transition for employees and reduce legal exposure. Institutions should:
Offer Consideration: A severance payment or benefit not otherwise owed in exchange for a release of claims.
Comply with OWBPA: When obtaining releases of age discrimination claims under the Older Workers Benefit Protection Act (OWBPA), employers must meet strict requirements, including providing 21 days’ notice for individuals (45 days for group terminations), a 7-day revocation period, and detailed disclosures about the layoff group.
Tailor Agreements: Ensure severance agreements and releases are compliant with federal and state law and any applicable CBA provisions or institutional policy requirements, avoid overbroad confidentiality or non-disparagement provisions, and align with regulatory guidance from the EEOC and NLRB.
These times of transition can be difficult for higher education employees, so approaching them with compassion and thoughtfulness are important. As a result, many institutions should consider also providing job placement assistance for terminated employees.
5. Communication and Employee Relations
How an institution communicates about a RIF can significantly impact morale, reputation, and litigation risk:
Transparency: Clearly explain the institution’s rationale and decision-making criteria and how both support the institution’s broader educational mission to avoid the perception of unfairness. For faculty terminations, engage early with faculty governance bodies to ensure transparency and meet any procedural requirements in the faculty handbook.
Dignity and Respect: Deliver the news in a private and empathetic manner, and provide information about severance, benefits continuation, and support resources.
Support Services: Consider offering outplacement assistance, counseling, or job search resources.
External Stakeholders: Be prepared to address questions about academic continuity and program from stakeholders, including the institution’s Board, students and parents, accreditors, and local community.
6. Documentation and Consistency
Institutions should maintain thorough documentation to demonstrate that decisions were legitimate, consistent, and non-discriminatory. This includes:
Written records of business justifications for the RIF.
Documentation of the selection process and criteria applied, as well as compliance with termination provisions in the faculty handbook, CBA, or institutional policies, as applicable
Copies of employee communications, notices, and agreements.
Consistency across the organization is critical. Inconsistent application of criteria or benefits or failure to follow required policies can expose the institution to claims of unfair treatment.
7. Post-RIF Considerations
After implementing a RIF, institutions should:
Monitor Morale and Retention: The remaining faculty and staff may experience decreased engagement or productivity. Leadership visibility and communication are key.
Reassess Workload: Ensure that the remaining faculty and staff are not overburdened and that critical functions are adequately staffed. Assess the impact of the RIF on academic programs, student services, and mission continuity at the institution.
Review Litigation Risk: Monitor for EEOC charges, lawsuits, or union grievances that may arise.
Conducting a reduction in force in higher education is never easy, but careful planning, legal compliance, and empathetic execution can significantly mitigate risk. Institutions should:
Understand the legal framework, including federal and state employment laws, faculty handbooks and contracts, and any applicable institutional policies;
Conduct disparate impact analyses to identify and minimize discrimination risks;
Structure severance agreements to secure enforceable releases; and
Communicate with transparency and respect to maintain trust within and outside the campus community.
These steps are recommended at a high-level and are not a one size fits all. Employers should work with counsel to prepare actionable steps that are appropriate for its organization and consistent with its policies and practices and applicable law. By balancing compliance with compassion, institutions can navigate RIFs responsibly while protecting both the university and its academic mission.