The Boundaries of Chapter 93A
The scope of Chapter 93A is not unlimited, as the Appeals Court of Massachusetts recently confirmed in Beaudoin v. Massachusetts School of Law at Andover, Inc. The case involved a law student who was disenrolled from the school for not obtaining a COVID-19 vaccination, contrary to what he alleged were the school’s representations. He brought claims for breach of contract, promissory estoppel, breach of the implied covenant of good faith and fair dealing, negligent misrepresentation, Chapter 93A, and unjust enrichment. The trial court dismissed the complaint under Mass. R. Civ. P. 12(b)(6) for failure to state a claim.
The Appeals Court affirmed the dismissal of the Chapter 93A claim, noting that (i) Chapter 93A, Section 2 prohibits unlawful acts and practices occurring “in the conduct of any trade or commerce” and (ii) although charitable corporations “are not immune” from Chapter 93A’s reach, in most cases, a charitable corporate’s activities in furtherance of its core mission will not be engaged in “trade or commerce” under Section 2. This decision relies on the Supreme Judicial Court’s oft-quoted decision in Linkage Corporation v. Boston Univ. Trustees (1997) and the First Circuit’s Squeri v. Mount Ida Coll. (2020). As the law student’s Chapter 93A claims focused on the alleged unfair and deceptive recruiting of students to enroll at the school, the claims arose from the nonprofit law school’s provision of education to students and, as such, the challenged acts and practices did not fall into “the conduct of any trade or commerce.” The Appeals Court, however, reversed the Trial Court’s dismissal of various common law claims.
This case demonstrates that plaintiffs and defendants alike must always consider whether challenged conduct under Chapter 93A fits the definitions required to trigger coverage and whether adding a Chapter 93A count is appropriate or will cause initial dispositive motion practice.
Trump Administration Says Title IX Does Not Apply to NIL Pay, Rescinds Recent Guidance
On February 12, 2025, the U.S. Department of Education under the Trump administration rescinded recent guidance that name, image, and likeness (NIL) payments to college athletes implicate the gender equal opportunity requirements of Title IX of the Education Amendments of 1972.
Quick Hits
The Department of Education has rescinded recent guidance that had warned NCAA schools that NIL payments could trigger the equal opportunity obligations of Title IX.
This announcement indicated that the department interprets Title IX as not applying to how revenue-generating athletics programs allocate compensation among their athletes.
On February 12, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) announced that it had rescinded the nine-page Title IX guidance on NIL payments previously issued on January 16, 2025, in the final days of the Biden administration.
“The NIL guidance, rammed through by the Biden Administration in its final days, is overly burdensome, profoundly unfair, and goes well beyond what agency guidance is intended to achieve,” Acting Assistant Secretary for Civil Rights Craig Trainor said in a statement.“Without a credible legal justification, the Biden Administration claimed that NIL agreements between schools and student athletes are akin to financial aid and must, therefore, be proportionately distributed between male and female athletes under Title IX.”
“Enacted over 50 years ago, Title IX says nothing about how revenue-generating athletics programs should allocate compensation among student athletes,” Assistant Secretary Trainor’s statement continued. “The claim that Title IX forces schools and colleges to distribute student-athlete revenues proportionately based on gender equity considerations is sweeping and would require clear legal authority to support it. That does not exist. Accordingly, the Biden NIL guidance is rescinded.”
The move comes as the National Collegiate Athletic Association (NCAA) and major college sports conferences have agreed to pay nearly $2.8 billion in back pay to former athletes as part of a proposed settlement to end NIL litigation and to establish a revenue-sharing framework to share more than $20 million annually with athletes.
The rescinded Biden-era guidance had warned NCAA schools that NIL compensation provided by a school, even if provided by private third parties, would be considered by the department as “athletic financial assistance,” which must be distributed in a nondiscriminatory manner under Title IX. The guidance had assumed that “the receipt of financial assistance does not transform students, including student-athletes, into employees,” but it opened the possibility to reevaluate that position.
The Education Department announcement also follows the NCAA’s announcement that it is banning transgender athletes from competing in women’s sports to align with President Trump’s recent executive order (EO), EO 14201, titled “Keeping Men Out of Women’s Sports.” That order directed the Secretary of Education to “take all appropriate action to affirmatively protect all-female athletic opportunities and all-female locker rooms and thereby provide the equal opportunity guaranteed by Title IX.”
Next Steps
The Department of Education’s announcement will have significant implications for NCAA schools, which have been adjusting to the quick evolution of college athletics in recent years. Changes have included the removal of restrictions on athletes earning NIL pay, loosening restrictions on athlete transfers, and the potential for revenue-sharing between schools and their athletes. Such changes have raised concerns under Title IX, particularly with potential disparities in NIL pay between athletes in men’s and women’s sports.
While the prior guidance had interpreted NIL pay as subject to Title IX, the Department of Education under the Trump administration appears to interpret NIL payments, and even potentially revenue-sharing, as outside of the typical athletic financial assistance governed by Title IX. This could open the door for more payments to athletes in the sports that tend to generate the most revenue, typically college football and men’s basketball.
The announcement further signals more potential changes by the Trump administration with the enforcement of Title IX.
However, the rescission of the prior Title IX guidance may not be the end of the road. While some are praising the decision, others continue to argue that inequitable distribution of the settlement funds between men’s and women’s sports will violate Title IX. This could result in legal challenges as schools evaluate how best to distribute the payments.
Summary of Tax Proposals in Leaked Document Detailing Policy Proposals
I. Introduction
On January 17, 2025, news sources reported that Republican members of Congress circulated a detailed list of legislative policy options, including tax proposals. This blog post summarizes some of the tax proposals and corresponding revenue estimates mentioned in the list.
II. Individuals
(a) SALT Reform Options
The $10,000 cap on the deductibility of state and local tax (“SALT”) from federal taxable income for most non-corporate taxpayers is set to expire at the end of the year. The list includes several alternative proposals for SALT deductibility going forward.
Repeal SALT Deduction: The SALT deduction would be repealed for individual and business tax filers. This would raise $1 trillion over ten years, as compared to extending the current TCJA deduction cap.
Make $10,000 SALT Cap Permanent but Double for Married Couples: The current TCJA deduction cap for individual and business tax filers would remain, but the cap would be raised for married couples to $20,000 at an estimated cost of $100-200 billion over 10 years, as compared to extending the current TCJA deduction cap.
$15,000/$30,000 SALT Cap: The current SALT deduction cap would be increased to $15,000 for individual taxpayers and $30,000 for married couples, with an estimated cost of $500 billion over 10 years, as compared to extending the current TCJA deduction cap.
Eliminate Income/Sales Tax Deduction Portion of SALT: Only property taxes would be eligible for the SALT deduction, and the deduction would not be capped. This proposal would cost $300 billion over 10 years, as compared to extending the current TCJA deduction cap.
Eliminate Business SALT Deduction: This policy option would eliminate the SALT deduction for business filers only, while maintaining the TCJA deduction cap for individuals. It would raise $310 billion over 10 years.
(b) Repeal or Reduce Mortgage Interest Deduction
The TCJA lowered the amount on which homeowners may deduct home mortgage interest to the first $750,000 ($375,000 if married filing separately) of indebtedness. One proposal would repeal the deduction on primary residences, which would raise $1.0 trillion over 10 years dollars, as compared to extending current TCJA deduction caps.A second proposal would lower the cap on the deduction to the first $500,000 of indebtedness. This proposal would raise $50 billion over 10 years, as compared to extending current TCJA deduction caps. Both savings estimates are Tax Foundation scores.
(c) Repeal Exclusion of Interest on State and Local Bonds
Under current law, interest earned on bonds issued by states and municipalities is excluded from federal taxable income.One proposal would repeal this exclusion, which would raise $250 billion over 10 years. Interest on certain “private activity bonds” is also exempt from federal income tax. A second proposal would repeal the exemption for private activity bonds, Build America bonds, and other non-municipal bonds. It would raise $114 billion over 10 years.
(d) Repeal the Estate Tax
Estates are generally subject to federal tax. The TCJA raised the estate tax exclusion to $13,990,000 in 2025. The list includes a complete repeal of the estate tax. The proposal would cost $370 billion over 10 years.
(e) Exempt Americans Abroad from Income Tax
The foreign earned income exclusion allows U.S. citizens who are residents of a foreign country or countries for an uninterrupted tax year to exclude up to $130,000 in foreign earnings from U.S. taxable income in 2025. The list suggests the limit could be raised, or that all foreign earned income could be exempted from U.S. tax. The Tax Foundation has estimated that the cost is $100 billion over 10 years, though it is not clear which proposal the estimate is related to. This is a Tax Foundation Score.
III. Businesses
(a) Corporate Income Tax
The current corporate income tax rate is 21%. The list posits reductions in the rate to either 15% (at a cost of $522 billion over 10 years) or 20% (at a cost of $73 billion over 10 years).
(b) Repeal the Corporate Alternative Minimum Tax
The Inflation Reduction Act of 2022 (“IRA”) imposed a 15% corporate alternative minimum tax (“CAMT”) on the adjusted financial statement of certain very large corporations. One proposal would repeal the CAMT, at a cost of $222 billion over 10 years.
(c) Repeal Green Energy Tax Credits
The IRA enacted various “green” tax credits, including for clean vehicles, clean energy, efficient building and home energy, carbon sequestration, sustainable aviation fuels, environmental justice and biofuel. These tax credits are proposed to be repealed. The repeal would save up to $796 billion over 10 years.
(d) End Employee Retention Tax Credit
The Employee Retention Tax Credit (“ERTC”) was established under the Coronavirus Aid, Relief, and Economic Security Act in 2020. The ERTC provided “Eligible Employers” with a refundable tax credit for wages paid between March 12, 2020 and January 1, 2021 for keeping employees on payroll despite economic hardship related to COVID-19.The proposal would extend the current moratorium on processing claims for credits, eliminate the credit for claims submitted after January 31, 2024 and impose stricter penalties for fraud related to the credit at an estimated savings of $70-75 billion over 10 years.
IV. Nonprofits
(a) Endowment Tax Expansion for Private Colleges and Universities
The TCJA imposed a 1.4% excise tax on total net investment income of private colleges and universities with endowment assets valued at $500,000 or more per student (other than assets used directly in carrying out the institution’s exempt purpose). One proposal would increase the excise tax to 14%, which would raise $10 billion over 10 years. A related but separate proposal would change the counting mechanism for the per student endowment calculation to include only students who are U.S. citizens, permanent residents or are able to provide evidence of being in the country with the intention of becoming a citizen or permanent resident. This proposal would raise $275 million over 10 years.
(b) Repeal Nonprofit Status for Hospitals
Generally, hospitals are eligible for federal tax-exempt status. The list proposes to eliminate tax-exempt status for hospitals. The Committee for a Responsible Federal Budget has estimated that the proposal would raise $260 billion over 10 years.
V. Enforcement
Repeal IRA’s IRS Enforcement Funding
The IRA resulted in supplemental funding to the IRS, for enforcement purposes. The list states that if this funding is repealed, outlays would be reduced by $20 billion and revenues by $66.6 billion, for a net cost of $46.6 billion over 10 years.
Mary McNicholas and Amanda H. Nussbaum also contributed to this article.
Utah Introduces New Bill With “Unique” Definition for Ultra-Processed Foods in Schools
On February 4, 2025, Utah’s state legislature introduced H.B. 402, “Foods Available at Schools Amendments,” a bill aimed at amending the types of foods available in public schools. This bill specifically targets the prohibition of certain food additives, utilizing a unique definition of “ultra-processed foods” (UPFs), a category of foods yet to be formally defined by law or regulation.
The bill attempts to define UPFs as foods or beverages containing one or more of the following ingredients: brominated vegetable oil, potassium bromate, propylparaben, titanium dioxide, and various artificial dyes such as blue dye 1, blue dye 2, green dye 3, red dye 3, red dye 40, yellow dye 5, and yellow dye 6. We note that both bromated vegetable oil and red dye 3 have had their market authorizations revoked by FDA.
—The definition of UPFs as presented is entirely focused on artificial dyes and a few specific additives that does not encompass the broader range of ingredients and processes that typically characterize UPFs under the academic classifications that are in circulation.
The bill’s definition seems to reduce UPFs to a list of artificial dyes and a few other additives, demonstrating the confusion surrounding this issue, and the potential for policymaking not grounded in science.
The NIH IDC – Where Are We Now
On February 7, the National Institutes of Health (“NIH”) issued a Notice (NOT-OD-25-068) entitled “Supplemental Guidance to the 2024 NIH Grants Policy Statement: Indirect Cost Rates” (the “Notice”), though which NIH announced the adoption of a uniform indirect cost rate (“IDC Rate”) of 15% applicable to all new grants, and to existing grants awarded to Institutions of Higher Education (“IHEs”) – encompassing the vast majority of postsecondary educational institutions in the United States – as of the date the Notice was issued (February 7, 2025). The Notice also indicates the policy will apply for “all current grants for go forward expenses from February 10, 2025 as well as for all new grants issued.”
The Notice, as written and supported by underlying regulations, appears to apply the 15% IDC Rate to existing awards only for IHE recipients (see the Notice’s acknowledgment that “NIH may deviate from the negotiated rate both for future grant awards and, in the case of grants to institutions of higher education (“IHEs”), for existing grant awards. See 45 CFR Appendix III to Part 75, § C.7.a; see 45 C.F.R. 75.414(c)(1).” (emphasis added)). However, there is some ambiguity in the wording and existing non-IHE awardees should be prepared for a possibly broader read by the NIH. The IDC Rate covers “facilities” and “administration” costs of the grantee institution. As a general matter, an institution’s IDC Rate is pre-negotiated and although the NIH cited 27-28% as the average negotiated IDC Rate, it has been reported that many institutions negotiate upwards of 50-60%, with some even as high as 75%.
The NIH justified its action under 45 C.F.R. § 75.414(c)(1), pursuant to which “[a]n HHS awarding agency may use a rate different from the negotiated rate for a class of Federal awards or a single Federal award only when required by Federal statute or regulation, or when approved by a Federal awarding agency head or delegate based on documented justification as described in paragraph (c)(3) of this section.” Paragraph (c)(3) goes on to require that “[t]he HHS awarding agency must implement, and make publicly available, the policies, procedures and general decision-making criteria that their programs will follow to seek and justify deviations from negotiated rates.” Presumably the NIH is taking the position that this Notice serves as the publication of the criteria it will follow (and is following in real time through the Notice) to seek and justify this likely downward deviation from already negotiated rates held by grantee institutions for existing awards.
The NIH Notice was challenged in two different motions for temporary restraining orders (“TRO”): one filed by a collection of State Attorneys General (see Commonwealth of Massachusetts vs. National Institutes of Health, Case # 1:25-cv-10338) and the other by the Association of American Medical Colleges and other similar associations (Case # 1:25-cv-10340). The motions are based on several similar arguments: (1) the indirect rate change is arbitrary and capricious, (2) the rate change violates Section 224 of the Further Consolidated Appropriations Act, 2024, (3) NIH failed to comply with its own regulations for indirect cost rates, (4) NIH has no authority to make retroactive changes to indirect cost rates, and (5) notice and comment procedures are required because this is a substantive change because it imposes a new obligation that did not exist previously.
On February 10, the District Court for the District of Massachusetts granted the State Attorneys General’s request and entered a TRO blocking the implementation, application, and enforcement of the Notice within the Plaintiff States (i.e., within Massachusetts, Illinois, Michigan, Arizona, California, Connecticut, Colorado, Delaware, Hawaii, Maine, Maryland, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington and Wisconsin) until further order is issued by the Court. A hearing date has been set for February 21, 2025 at 10 a.m.
In a separate ongoing litigation, State of New York v. Trump (C.A. No. 25-cv-39-JJM-PAS), the District Court of Rhode Island issued a TRO on January 31, 2025, prohibiting the Defendants from freezing federal funding based on the Trump administration’s Executive Orders or the OMB Memorandum M-24-13 dated January 27, 2025 (“Temporary Pause of Agency Grant, Loan, and Other Financial Assistance Programs”). On February 10, 2025, the same day as the motions to block the NIH’s uniform IDC, the judge in that matter, Chief Judge John J. McConnell, Jr. issued an Order to enforce the funding-freeze TRO in response to Plaintiff’s emergency motion, indicating that the Defendants must take certain steps to both restore funding and refrain from further violation of the TRO. Some media outlets have reported this Order as also blocking the NIH’s Notice related to IDCs. It is unclear at this time whether the NIH’s action in the Notice could be deemed to fall within the scope of the Executive Orders or the OMB Memo, and it does not appear this argument was made in the two motions for TROs brought against the NIH on February 10, 2025. That said, it is possible a cognizable claim could be made that the NIH’s actions constitute an attempt to cut off funding under another “name or title,” which was explicitly incorporated into the TRO issued by Judge McConnell (“Defendants shall also be restrained and prohibited from reissuing, adopting, implementing, or otherwise giving effect to the OMB Directive under any other name or title or through any other Defendants (or agency supervised, administered, or controlled by any Defendant), such as the continued implementation identified by the White House Press Secretary’s statement of January 29, 2025.”).
Given the NIH’s Notice and the various ongoing litigations, Institutions will also have to carefully evaluate their approach to submitting new grant applications and administering current awards.
How NCAA Changes to Transgender Policy Following President Trump’s Executive Order Impact Schools
Takeaways
President Trump signed executive order “Keeping Men out of Women’s Sports,” barring transgender women from competing in women’s sports and citing fairness, safety, and privacy concerns. Schools that do not comply with the new federal policy risk losing federal funding under Title IX enforcement.
In response, the NCAA immediately revised its transgender participation policy, restricting competition in women’s sports to athletes assigned female at birth.
Legal challenges are expected, as some states and advocacy groups argue the policy is discriminatory and violates previous Title IX interpretations.
Background
On Feb. 5, 2025, President Donald Trump signed executive order “Keeping Men Out of Women’s Sports,” which prohibits transgender women from participating in female athletic categories at federally funded educational institutions. The order also directed the State Department to demand changes within the International Olympic Committee. The Committee has left eligibility rules up to the global federations that govern different sports.
The Trump Administration has made a push to redefine sex-based legal protections under Title IX of the Education Amendments of 1972, emphasizing biological sex as the deciding factor for athletic eligibility. Previously, on Jan. 20, 2025, the Administration issued an executive order declaring the federal government would recognize only two sexes, male and female, for all legal and regulatory purposes.
The NCAA has over 530,000 student-athletes, fewer than 10 of whom are transgender, according to a statement the NCAA’s president, Charlie Baker had provided to a Senate panel in December. In January, Baker called for greater legal clarity on the issue from regulators.
Finding that clarity in the form of the new executive order, in response, the NCAA Board of Governors voted to amend its transgender participation policy the day after Trump’s executive order was issued.
The new policy states that eligibility for NCAA women’s sports is now strictly limited to athletes assigned female at birth. Transgender men (those assigned female at birth but who have begun a medical transition) may still participate in men’s sports without restriction. However, an athlete taking testosterone for gender transition may only practice with a women’s team and is prohibited from competing in official NCAA-sanctioned events. If a team allows an ineligible athlete to compete, the entire team will be disqualified from NCAA championships.
Legal and Institutional Challenges
The executive order immediately ignited controversy as several states and legal groups vowed to challenge the order.
Pushback is expected, particularly in states like California, Connecticut, Massachusetts, and New York, where laws expressly protect transgender rights. Schools in these states now face a dilemma: Whether to comply with federal regulations or uphold state laws that recognize gender identity protections for student-athletes. Schools in these states may risk severe financial consequences if they refuse to comply with the new federal mandate, potentially losing millions in federal education funding.
More than two dozen states already bar transgender athletes from participating in school sports, whether in K-12 schools or at the collegiate level. In January, the House passed a bill barring transgender women and girls from sports programs for female students nationwide (the bill is not likely to pass in the Senate).
What Comes Next?
Some key questions remain:
Will federal courts uphold or strike down the new Title IX interpretation?
How will schools in certain states navigate the conflict between the executive order and new NCAA policy and state laws?
NCAA Bars Transgender Athletes from Women’s Sports Aligning With President Trump’s Executive Order
On February 6, 2025, the National Collegiate Athletic Association (NCAA) announced its new policy, prohibiting athletes assigned male at birth from participating in women’s sports competitions, aligning the NCAA eligibility rules with President Donald Trump’s recent executive order (EO) barring transgender athletes from women’s sports. The new rules reverse a prior policy of allowing athletes to participate in accordance with their gender identity.
Quick Hits
The NCAA Board of Governors voted to adopt an updated transgender athlete participation policy that prohibits athletes assigned male at birth from competing in NCAA women’s competitions.
The new policy aligns with President Donald Trump’s executive order barring transgender athletes from competing in women’s sports.
The executive order takes the position that allowing transgender participation in women’s sports undermines the fairness and opportunities for women and girls and threatens federal funding for educational programs that do not comply.
The NCAA aims to establish clear national eligibility standards in response to the differing state laws and court decisions surrounding this issue.
Under the updated participation policy for transgender athletes, “[r]egardless of sex assigned at birth or gender identity, a student-athlete may participate (practice and competition) in NCAA men’s sports, assuming they meet all other NCAA eligibility requirements.”
For women’s sports, “[a] student-athlete assigned male at birth may not compete for an NCAA women’s team.” However, such student-athletes “may continue practicing with a women’s team and receive all other benefits applicable to student-athletes.” “A student-athlete assigned female at birth who has begun hormone therapy (e.g., testosterone) may not compete on a women’s team.” However, they, too, may continue practicing with a women’s team and receive all other applicable benefits.
“We strongly believe that clear, consistent, and uniform eligibility standards would best serve today’s student-athletes instead of a patchwork of conflicting state laws and court decisions. To that end, President Trump’s order provides a clear, national standard,” NCAA President Charlie Baker said in a statement.
The change comes a day after President Trump signed an EO titled “Keeping Men Out of Women’s Sports.” The EO states that allowing transgender athletes to compete in women’s sports “is demeaning, unfair, and dangerous to women and girls, and denies women and girls the equal opportunity to participate and excel in competitive sports.”
While not directly addressing the NCAA, the EO declared that it is “the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy.”
The EO had significant implications for the NCAA schools, which rely on federal funding. After the EO, NCAA President Baker said that the Board of Governors would “take necessary steps to align NCAA policy” with the EO.
Under the NCAA’s prior policy, adopted by the Board of Governors in January 2022, transgender women athletes were allowed to compete in NCAA women’s sports after submitting documentation of “gender affirming treatment” by a medical professional and evidence that their testosterone levels are “within the allowable levels for the sport” in which they plan to compete.
In addition, NCAA schools are faced with shifting interpretations of Title IX of the Education Amendments of 1972, which requires that schools provide equal opportunity to students, regardless of sex, including in terms of sports participation and “athletic financial assistance.”
On January 9, 2025, a federal court in Kentucky vacated a Biden-era U.S. Department of Education rule on Title IX adopted in 2024, which expanded the definition of sex-based harassment to include sexual orientation and gender identity. The Department of Education has since confirmed that it will enforce Title IX under a 2020 rule issued during President Trump’s first term.
The recent actions align with President Trump’s inauguration day EO 14168, titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” which directed federal agencies to “enforce laws governing sex-based rights, protections, opportunities, and accommodations to protect men and women as biologically distinct sexes.”
Next Steps
The new NCAA participation policy will have significant implications for transgender athletes currently competing or seeking to compete in NCAA sports, likely meaning that they will no longer be able to compete in NCAA women’s competitions. Baker’s statements further indicate the NCAA’s desire for national standards in an era that has seen major changes to college sports and eligibility rules pushed by antitrust litigation and an inconsistent patchwork of state laws and regulations, including changes to athlete transfers, the allowance of compensation for name, image, and likeness, and the potential adoption of revenue sharing.
What to Know About the War Being Waged Against DEI
Can you still have DEI (diversity, equity, and inclusion) programs? How about affirmative action plans? The Supreme Court’s June 2023 decision in Students for Fair Admissions v. Harvard garnered national attention in holding that Harvard’s admissions program, which used race as a factor in admissions, violated the Equal Protection Clause of the 14th Amendment. Since then, major private corporations have made headlines with their decisions to scale back certain DEI initiatives. Other private companies, such as Costco and Apple, remain unwavering in their commitment to DEI. While not without legal risk, companies that have found DEI initiatives to be helpful to their business and culture can continue with their programs.
State Attorneys General Weigh In
In a recent letter, 13 Democratic attorney generals (from California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, Rhode Island, and Vermont) urged one retail giant to reconsider its scale back of DEI programs. The AGs’ letter reminded the retail giant that the Fair Admissions decision is a narrow ruling and does not prohibit private corporations from implementing DEI initiatives. The letter went on to remind the company that DEI initiatives are not only encouraged and beneficial but are in some cases necessary to comply with certain states’ anti-discrimination laws.
The New Administration Weighs In
President Trump’s recent executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” has made the future of DEI even more perilous. The executive order rescinded Executive Order 11246, a 1965 order that imposed affirmative action requirements on federal contractors. Additionally, the federal government has placed DEI employees on paid leave and ordered the termination of DEI activities within federal agencies. The recent executive order goes on to demand that the attorney general submit “recommendations for enforcing Federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI.”
Avoiding Legal Risks in Continued DEI Efforts
If you want to continue DEI efforts, do so thoughtfully and recognize the risks. The recent executive orders emphasize the idea of restoring merit to employment decisions. Therefore, your DEI measures should ensure that programs continue to be merit-based and are designed to provide equal access to opportunities for all applicants and employees. The executive order does not define the specific DEI programs or activities it deems to be illegal, however policies such as quotas, hiring preferences, or hiring goals are likely more susceptible to claims of discrimination. You should review any of your existing company policies and initiatives to ensure they comply with state and federal anti-discrimination laws, as well as recent executive actions.
In the aftermath of the Fair Admissions decision, the EEOC stated “[i]t remains lawful for employers to implement diversity, equity, inclusion, and accessibility programs that seek to ensure workers of all backgrounds are afforded equal opportunity in the workplace.” Due to recent executive actions, we may get additional guidance from the EEOC on the topic of DEI.
Before you make a decision to change an existing workplace DEI initiative or to implement a new initiative, you should consult with your legal counsel to ensure compliance with state and federal anti-discrimination laws. Be on the lookout for developments in this space, as the president’s recent executive actions will likely face legal challenges so the landscape could change.
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Federal Court Acknowledges Catch-22 Involving FERPA and the NRLA
While union organizing among students flourished under President Biden’s labor board, colleges and universities face unresolved issues, including compliance with other federal laws.[1] In Vanderbilt University v. National Labor Relations Board, Vanderbilt University (Vanderbilt) sought a preliminary injunction enjoining the application of certain National Labor Relations Board (NLRB or Board) regulations that Vanderbilt argued conflict with the Family Educational Rights and Privacy Act (FERPA). The District Court for the Middle District of Tennessee (District Court) granted the injunction, recognizing a conflict between the Board’s disclosure requirements and FERPA’s privacy protections.
FERPA and the NLRB Regulations
The friction between FERPA and NLRB regulations is not surprising. Our last update addressed the NLRB’s General Counsel (GC) memorandum from August 2024, which attempted to reconcile a higher education institution’s disclosure obligations under the National Labor Relations Act (NLRA) and FERPA. In its recent decision, the District Court noted an outright conflict between FERPA and NLRB regulations. Generally, FERPA forbids the disclosure of student information from educational records without written consent unless an exception applies, such as when a student is given timely notice of a subpoena and the opportunity to initiate protective action. Failing to comply with FERPA presents a significant risk—losing federal funding. However, failing to comply with NLRB regulations could result in NLRA violations or preclude an institution from using certain defenses or strategies in a union election proceeding. The District Court recognized that FERPA protects student privacy rights, namely unauthorized disclosures of certain educational records and personal identifying information contained therein, but NLRB regulations enable unions and the Board access to certain personal identifying information for collective bargaining purposes and union elections. The District Court summarized the issue as a “seemingly impossible Morton’s Fork: either comply with those [NLRB] regulations and lose federal funding for violating its students’ privacy; or not comply and face punishment during union election proceedings.”
Vanderbilt University v. National Labor Relations Board
Vanderbilt is a 501(c)(3) FERPA-covered private university that accepts federal funding. The Vanderbilt Graduate Workers Union United, International Union, UAW (Union) filed a representation petition with Region 10 of the NLRB to represent 2,200 graduate student employees. NLRB regulations allow employers, upon filing a petition, to submit a statement of position (SOP), but that SOP must include, among other things, “a list of the full names, work locations, shifts, and job classifications in the proposed unit.” If the SOP omits information, an employer is precluded from raising any issue, offering any evidence, cross-examining witnesses, or presenting any argument related to the omitted information at the hearing concerning the petition. Vanderbilt argued that it had competing obligations—provide student information per the Board regulations or protect against unapproved disclosure and use of student education records under FERPA. After the Regional Director issued a subpoena directing Vanderbilt to provide the NLRB-required information, the university provided affected students an opportunity to object under FERPA. FERPA allows institutions to release protected records with students’ consent or in response to a lawfully issued subpoena, so long as affected students are given timely notice and an opportunity to take protective action. Over 80 students objected to the subpoena. After another subpoena, Vanderbilt again notified affected students, but it received even more objections. Two graduate students filed a request to intervene directly with the Board proceeding and a motion to stay enforcement of the subpoena to provide time to present their objections. The Regional Director later denied Vanderbilt’s motion to postpone the hearing, the SOP, and its response to the subpoena and further denied the students’ request to intervene and the motion to stay. The two students filed an emergency appeal to the Board. At the same time, Vanderbilt sought emergency expedited relief from the Board to avoid disclosing students’ FERPA-protected information before their objections were adjudicated.
Ultimately, Vanderbilt complied with the subpoena, filing its SOP with redacted student information. At the hearing concerning the petition, the Union moved to preclude Vanderbilt from presenting evidence or arguments contesting the appropriateness of the proposed union or any individual’s eligibility because the SOP did not provide full names. Vanderbilt opposed the Union’s motion for preclusion, arguing the redacted information was FERPA-protected. Eventually, at the Regional Director’s instruction, the hearing officer precluded Vanderbilt from offering evidence or argument on the unit’s appropriateness because it did not provide the required information and precluded Vanderbilt from offering proof regarding the evidence it would have presented.
Vanderbilt requested the District Court issue a preliminary injunction enjoining the Board from enforcing three regulations that essentially present a catch-22 when considered alongside FERPA obligations. Namely, the regulations forced a FERPA violation by disclosing protected personally identifiable information, which would penalize Vanderbilt for FERPA compliance by precluding evidence or argument about the unit’s appropriateness.
The Court Finds A Preliminary Injunction Necessary
The Court ultimately found the regulations contrary to FERPA and thus “not in accordance with law” under the Administrative Procedures Act (APA).[2] The Court granted immediate injunctive relief based on the four factors considered for an injunction, detailed below.
1. Vanderbilt had a Strong Likelihood of Success on the Merits
The Court concluded Vanderbilt is likely to succeed on the merits of its claim that the Board is applying the regulations in a manner not in accordance with the law, particularly because the application directly conflicts with Vanderbilt’s FERPA obligations and penalizes it for compliance. The particular requirements of the NLRB regulations and FERPA illustrate Vanderbilt’s conflict.
The three NLRB regulations at issue provide that:
A statement of position must contain “a list of the full names, work locations, shifts, and job classifications of all individuals in the proposed unit[;]”
If a party fails to “timely furnish the lists of employees,” the employer is “precluded from contesting the appropriateness of the proposed unit” and “from contesting the eligibility or inclusion of any individuals at the pre-election hearing, including by presenting evidence or argument, or by cross-examination of witnesses[;]”
Absent extraordinary circumstances, an employer must provide the Regional Director, within two business days after issuance of direction, “a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cellular “cell” telephone numbers) of all eligible voters.”
At the same time, FERPA provides (absent exception to disclosure under particular circumstances) that:
[n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information . . . ) of students without the written consent of their parents to any individual, agency, or organization[.]
The Court found Vanderbilt likely to succeed in showing FERPA protections apply to student information NLRB regulations require for disclosure and that the university would be forced to enact a “policy or practice” of disclosure during election proceedings. According to the Court, the information required by the regulations to avoid preclusion, including the voter list related to students and maintained by Vanderbilt, constitutes education records or personally identifiable information. The Court concluded the information, such as work locations, shifts, job classifications, and personal email addresses, did not constitute “directory information,” which FERPA permits an institution to disclose.
The Court held that the Board’s application of the regulations to Vanderbilt clearly conflicted with FERPA obligations. The Court noted that even if the Board adequately contested Vanderbilt’s claim under FERPA’s subpoena exception, the argument would likely fail because of the Board’s strict application, i.e., the Board did not give Vanderbilt a significant opportunity to allow students to seek protective action in response to the subpoena before mandating disclosure. The Court also noted that the Board failed to make a meaningful effort to agree on an accommodation to honor Vanderbilt’s concerns, as the GC recommended, or follow any other related guidance to facilitate compliance and consent procedures. The Court noted that Vanderbilt could not comply with FERPA and the regulations as currently written during the election proceeding and that “a valid statute always prevails over a conflicting regulation.” Therefore, the Court concluded Vanderbilt will likely succeed in its APA claim that the regulations are not in accordance with FERPA.
2. Vanderbilt Would Suffer Irreparable Injury
The District Court also found that Vanderbilt would suffer irreparable injury without an injunction. The Court noted Vanderbilt suffered harm from a previous preclusion order and would continue to suffer if forced to participate in election proceedings governed by regulations that required the university to choose between rights in NLRB proceedings and federal obligations. The Court emphasized the threat of Vanderbilt losing federal funding if forced to continue to comply with the election. Accordingly, given the past harm Vanderbilt experienced—which would continue to pervade—and the potential loss of funding, the Court found irreparable injury.
3. The Third and Fourth Factors Proved Neutral
As for the remaining factors—whether issuance would cause substantial harm to the opposing party or others and the public interest—the Court noted its neutrality. On the one hand, the Court acknowledged that Congress gave the NLRB significant power to regulate election proceedings and that an injunction could delay administrative proceedings, cause confusion regarding the proper application of the regulations, and deprive students of the ability to unionize quickly. However, the Court also noted Vanderbilt’s significant likelihood of success on the merits, which strongly indicated that a preliminary injunction would serve the public interest as “there is generally no public interest in the perpetuation of unlawful agency action.” The Court noted that granting relief would likely benefit over 100 students who objected to disclosing FERPA-protected information. While Congress enacted the NLRA and created the NLRB with specific objectives to not be infringed upon, the Court gave great weight to the fact that Congress similarly intended to protect the privacy rights of students under FERPA—students objected under the rights delegated by Congress. Those rights should not need to be set aside for agency expediency.
After balancing those factors and considering the irreparable harm, the Court found the circumstances warranted a preliminary injunction and narrowly tailored the scope by enjoining the Board from applying and enforcing the regulations to Vanderbilt in a way that violates the APA or FERPA. Shortly after the Court’s decision, the Union withdrew its petition.
What’s to Come
As the Courts and the Board navigate these challenges, the very legal foundation for students being able to unionize could face challenges under a Trump labor board. During President Trump’s prior term, the NLRB proposed but later withdrew regulations that would have excluded students at private universities from the NLRA’s definition of an employee. Will a Trump labor board reintroduce those proposed regulations? With the Senate failing to confirm Lauren McFerran to another term, Republican appointees will have a Board majority in early 2025. With precedent established by President Biden, Trump has already removed the General Counsel that President Biden appointed. In light of existing complex issues involving higher education, labor law, and other developments likely to come, colleges and universities should consult with competent legal counsel to stay abreast of these issues and prepare for any potential compliance obligations.
ENDNOTES
1. Aside from the FERPA compliance issues addressed in this article, higher education institutions may face additional issues with students being recognized as employees, including potential conflicts with federal immigration law and the Fair Labor Standards Act. The Third Circuit Court of Appeals addressed possible minimum wage requirements in Johnson v. NCAA, 2024 WL 3367646 (3d Cir. July 11, 2024), and the NLRB’s regional directors have addressed arguments that under federal immigration law, the characterization of a student as an employee has the potential to violate that student’s immigration status. For instance, international students must comply with federal immigration requirements, which can limit pursuit of full-time work in the United States and hours worked for certain visas. Educational institutions often limit international students’ work hours to comply with such requirements. However, with more and more students recognized as workers, these limits may be exceeded unintentionally if an international student is classified as an employee of their higher education institution, placing certain international students’ visa status at risk. Some regional directors have recognized this potential conflict when presented with election petitions, while others have given less weight to this issue—the facts of the particular case and what students are actually doing appear significant to this determination. See Trustees of Dartmouth College v. Service Employees International Union, Local 560, Case 01-RC-325633 (Feb. 5, 2024); Massachusetts Institute of Technology, Case 01-RC-304042 (March 13, 2023).
2. The Court did not address Vanderbilt’s arguments that the regulations are arbitrary and capricious because it found the regulations as applied were not in accordance with the law (i.e., FERPA).
U.S. Department of Education Confirms That It Will Enforce 2020 Title IX Rule
On January 31, 2025, the U.S. Department of Education’s Office for Civil Rights (OCR) issued a “Dear Colleague Letter” (DCL) announcing that it would enforce Title IX of the Education Amendments of 1972 under the provisions of the 2020 Title IX Rule, rather than the recently invalidated 2024 Title IX Final Rule.
The DCL and Executive Order 14168 (“Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government”) have significant implications for schools, colleges, universities, and other recipients of federal financial assistance that are subject to Title IX. These institutions will likely need to review and revise their policies, procedures, and practices to ensure compliance with the 2020 Title IX Rule and the executive order and to prepare for potential enforcement action by OCR or the U.S. Department of Justice.
Quick Hits
OCR will enforce Title IX protections under the 2020 Title IX Rule, not the 2024 Title IX Final Rule.
The 2020 Title IX Rule provides procedural protections for complainants and respondents and requires supportive measures.
The 2024 Title IX Final Rule, which was criticized for impermissibly expanding the definition of “sex” to include gender identity and other categories, has been invalidated by federal courts.
OCR’s new course for enforcement aligns with Executive Order 14168. The 2020 Title IX Rule, issued by the first Trump administration in May 2020, defines “sexual harassment,” provides procedural protections for complainants and respondents, requires the provision of supportive measures to complainants, and clarifies school-level reporting processes. The 2024 Title IX Final Rule, issued by the Biden administration in April 2024, expanded the definition of “on the basis of sex” to include gender identity, sex stereotypes, sex characteristics, and sexual orientation, and mandated that schools allow students and employees to access facilities, programs, and activities consistent with their self-identified gender.
The DCL follows a series of federal court decisions that vacated or enjoined the 2024 Title IX Final Rule, finding that it violated the plain text and original meaning of Title IX, which prohibits discrimination on the basis of sex in federally funded education programs and activities. The most recent decision, issued by the U.S. District Court for the Eastern District of Kentucky on January 9, 2025, stated that the 2024 Title IX Final Rule “turn[ed] Title IX on its head” by allowing males to identify as and thus become women and vice versa, and by requiring schools to treat such claims as valid. The court also noted that “every court presented with a challenge to the [2024 Title IX] Final Rule has indicated that it is unlawful.” On this note, the DCL states that OCR’s enforcement measures will interpret the word “sex” to mean “the objective, immutable characteristic of being born male or female.”
The DCL also aligns with President Trump’s Executive Order 14168, issued on January 20, 2025, after the president was sworn in for his second term of office. The executive order declares that “[i]t is the policy of the United States to recognize two sexes, male and female” that are “not changeable and are grounded in fundamental and incontrovertible reality.” It directs all executive agencies and departments to “enforce all sex-protective laws to promote this reality,” to use “clear and accurate language and policies that recognize women are biologically female, and men are biologically male,” and to refrain from using federal funds to “promote gender ideology,” a concept that the executive order defines as including a “spectrum of genders that are disconnected from one’s sex.”
The executive order also rescinds several previous executive orders, presidential memoranda, and agency guidance documents issued by the Biden administration that addressed sexual orientation and gender identity issues. The order instructs the attorney general to issue guidance to agencies to “correct” what it describes as the “misapplication of the Supreme Court’s decision in Bostock v. Clayton County, Georgia (2020) to sex-based distinctions in agency activities.” (In Bostock, the Supreme Court of the United States held that Title VII of the Civil Rights Act of 1964’s prohibition against unlawful sex discrimination encompassed discrimination based on sexual orientation or gender identity.)
The executive order authorizes agency action to “ensure that intimate spaces [such as prisons, shelters, and bathrooms] designated for women, girls, or females (or for men, boys, or males) are designated by sex and not identity.” It also prohibits the use of federal funds “for any medical procedure, treatment, or drug for the purpose of conforming an inmate’s appearance to that of the opposite sex.”
Next Steps
In light of OCR’s “Dear Colleague Letter” and President Trump’s Executive Order 14168, schools, colleges, universities, and other recipients of federal financial assistance may want to consider:
reviewing and revising their policies, procedures, and practices to ensure compliance with the 2020 Title IX Rule and executive order; and
providing training and education to staff, faculty, and students on the new requirements and changes related to Title IX enforcement.
Executive Order Covers DEI, Affirmative Action Programs in Private, Government and Educational Sectors
Highlights
A recently issued executive order seeks to end illegal DEI programs
The order bans certain federal contractor affirmative action programs and a subsequent order ends enforcement actions
Further, the order promises formal guidance to educational agencies and higher education institutions relating to affirmative action in admissions and educational programs
Among the executive orders issued this past week is an order titled Ending Illegal Discrimination and Restoring Merit-Based Opportunity. Issued late in the day on Jan. 21, 2025, the order addresses diversity, equity, and inclusion (DEI) programs in the private sector, affirmative action programs by government contractors, and affirmative action in higher education and other educational agencies.
The executive order seeks to end diversity, equity and inclusion programs and affirmative action programs that “violate the text and spirit” of civil rights laws and “undermine the traditional values of hard work, excellence, and individual achievement.”
The executive order revokes four prior executive orders stretching back to 1965, while leaving in place certain earlier orders relating to non-discrimination and equal protection.
Private Sector DEI Programs
One focus of the executive order is to encourage private sector employers to end DEI programs involving “illegal discrimination and preferences” and advance “the policy of individual initiative, excellence and hard work.” To accomplish this, the executive order requires the U.S. Attorney General, in consultation with the heads of all federal agencies, to formulate a strategic enforcement plan to:
Outline steps to deter DEI programs involving “illegal discrimination or preferences”
Identify the “most egregious and discriminatory DEI practitioners.” This includes charging each federal agency to identify up to nine businesses/organizations/institutions of higher education to target for investigation
Evaluate litigation against organizations whose DEI programs are unlawful
Identify strategies to end illegal DEI programs in the private sector and encourage compliance with federal civil rights laws
Propose potential regulatory actions or sub-regulatory guidance on the topic of DEI
The Attorney General, after consulting the heads of federal agencies, is to provide the strategic enforcement plan by May 21, 2025.
Federal Contractor Affirmative Action Programs
Perhaps the most significant part of the executive order is that it revokes Executive Order 11246, the long-standing legal authority from 1965 that requires federal contractors and subcontractors to take affirmative action with respect to the employment of women and minorities and prohibits discrimination on the basis of race, color, national origin, sex and religion. Although federal contractors are permitted to continue to comply with Executive Order 11246 through April 21, 2025, there are significant long-term implications for contractors. These include:
Federal contractors are no longer required or allowed to take “affirmative action” with respect to women and minorities.
Federal contractors are not allowed or encouraged to “engage in workforce balancing based on race, color, sex, sexual preference, religion, or national origin.” This effectively means that federal contractors will no longer set hiring goals when their workforces do not reflect the availability of women and minorities in the pools from which they recruit. Likewise, federal contractors will no longer take good faith efforts to address goals or measure progress toward goals.
Federal contractors are held to strict non-discrimination requirements, including not considering race, color, national origin, sex, sexual preference, or religion in violation of federal civil rights laws.
Federal contracts will require contractors to agree that payment under the contract is contingent upon compliance with all federal non-discrimination laws.
Federal contractors will be required to certify they do not have DEI programs that violate federal non-discrimination laws.
The Office of Federal Contract Compliance Programs (OFCCP), the agency within the Department of Labor that enforces employment laws applicable to federal contractors, will immediately cease enforcing non-discrimination and affirmative action obligations with respect to women and minorities under Executive Order 11246. In follow-up, on Jan. 24 the newly appointed Acting Secretary of Labor issued an order halting all investigations and enforcement activity relating to Executive Order 11246. Accordingly, all complaints, investigations and cases pending before OFCCP, administrative law judges and the Administrative Review Board relating to Executive Order 11246 are closed. The Department of Labor is to notify contractors with pending cases of the closure by Jan. 31, 2025.
Not affected by this executive order are federal contractors’ obligations with respect to veterans and individuals with disabilities. Because Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) (applicable to veterans) and Section 503 (applicable to individuals with disabilities) are legislative, the executive order does not overturn those laws. Federal contractors will continue to have affirmative action and non-discrimination requirements with respect to veterans and individuals with disabilities. OFCCP may continue to enforce those laws but in accordance with the Jan. 24 order by the Acting Secretary of Labor, pending VEVRAA and Section 503 investigations and reviews are placed on hold pending further guidance.
New audits of government contractors are most certainly delayed until that guidance is issued. To commence new audits related to VEVRAA and Section 503, OFCCP will need to amend its current audit letter (scheduling letter and itemized listing). Changing the audit letter will require OFCCP to go through a notice, comment and approval process.
Affirmative Action in Education
The final prong of this executive order addresses affirmative action in educational programs. The executive order requires the Attorney General and Secretary of Education to issue joint guidance to higher education institutions and state/local agencies receiving federal funding with respect to complying with the holding of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. It is anticipated this guidance will address the use of race in admissions, scholarships, financial assistance and other aspects of the educational process.
Takeaways
In light of the executive order, employers should consider reviewing DEI programs to ensure they comply with anti-discrimination laws.
Government contractors should continue to comply with affirmative action requirements with respect to veterans and individuals with disabilities. They may continue their affirmative action programs with respect to women and minorities until April 21, 2025, but should watch for additional guidance on eliminating the affirmative action aspects of these plans, while continuing to focus on a commitment to non-discrimination.
Higher education and other educational agencies should continue to comply with the holding of Students for Fair Admissions and wait for further guidance from the Secretary of Education and Attorney General.
The Stop Campus Hazing Act—The Bipartisan Effort to Prevent Hazing in Higher Education Settings
At least forty-four states have enacted laws prohibiting hazing. However, the regulations, penalties, and requirements vary significantly by state. The enactment of the federal Stop Campus Hazing Act (SCHA) exemplifies the bipartisan effort aimed at combating hazing and protecting the health and safety of students on college campuses.
The SCHA’s focus on transparency allows students and their parents to make informed decisions when choosing which institutions to attend for postsecondary education and what institutional student organizations they should join. The SCHA also significantly increases the obligations of institutions to not only track, report, and publicly disclose incidents of hazing on campus, but also to develop hazing prevention and awareness programs for students, faculty, and staff.
Quick Hits
The SCHA requires that higher education institutions participating in Title IV of the Higher Education Act of 1965 programs collect, report, and publicly disclose hazing-related incidents and implement hazing prevention and awareness programs.
The SCHA also mandates that institutions, as part of their Clery Reports, begin collecting hazing data and statistics as of January 1, 2025, and include, among other items, all hazing incidents that were reported to campus security officers or local law enforcement within their 2026 Clery Reports.
The SCHA provides the first federal definitions of “hazing” and “student organizations.”
On December 23, 2024, President Joe Biden signed the Stop Campus Hazing Act into law, making it the first federal law to create anti-hazing requirements for institutions of higher education. The SCHA amends Section 485(f) of the Higher Education Act of 1965, otherwise known as the “Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act” (Clery Act). Notably, the SCHA also renamed the Clery Act the “Jeanne Clery Campus Safety Act,” evidencing the growth of the Clery Act over the last few decades and its application to a full spectrum of campus safety issues, which now includes hazing.
The SCHA went into effect on January 1, 2025, and focuses on increasing transparency around the issue of hazing on college campuses. It mandates that higher education institutions participating in programs under Title IV of the Higher Education Act of 1965 comply with, among other things, enhanced reporting guidelines and hazing prevention education requirements in order to achieve this goal of transparency.
In an effort to achieve its goal of transparency, the SCHA created two new hazing incident reporting procedures: (1) a new “Campus Hazing Transparency Report” requirement; and (2) a new mandate requiring higher education institutions to include campus hazing incidents within their annual security reports (often referred to as “Clery Reports”), as well as information relating to the institutions’ hazing policies and campus-wide hazing education and prevention programming.
The Implementation of Campus Hazing Transparency Reports
The SCHA requires institutions to create, publish, and update Campus Hazing Transparency Reports. The Campus Hazing Transparency Report must be posted on an institution’s website in a “prominent location” and include a statement notifying the public of the annual availability of statistics on hazing, including a link to the same, and information about the institution’s policies related to hazing and applicable local, state, and tribal laws.
Beginning on July 1, 2025, institutions must begin drafting Campus Hazing Transparency Reports summarizing their findings related to student organizations that are found to be in violation of the SCHA. The SCHA requires institutions to publish their Campus Hazing Transparency Reports no later than December 23, 2025. These reports must be updated “not less frequently than 2 times each year” and must include the following information: (1) the name of the organization involved in the hazing incident; (2) a description of the violation; (3) the date of the incident and investigation; (4) a description of the institution’s findings; and (5) the sanctions that were imposed as a result thereof.
Additionally, Campus Hazing Transparency Reports must not include any personally identifiable information (PII) about any particular student, or any information that could reveal PII. Further, information included in each report and update must be maintained by the institution for five calendar years.
New Disclosure Mandates for Clery Act reports
Institutions are currently mandated by the Clery Act to publish and distribute annual security reports, also known as Clery Reports. Clery Reports disclose campus crime statistics and campus security policies. The SCHA requires that institutions begin collecting hazing data and statistics as of January 1, 2025, and include all hazing incidents that were reported to campus security officers or local law enforcement within their 2026 Clery Reports.
In addition, each institution’s Clery Report must include a statement of its current hazing policies, how to report incidents of hazing, the process used to investigate alleged hazing violations, and information on applicable local, state, and tribal hazing laws. A Clery Report must also detail the institution’s hazing prevention and awareness programs.
Implementation of Hazing Prevention and Awareness Programs
In addition to the obligations outlined above, the SCHA also compels institutions to enact hazing prevention and awareness programs in their efforts to prevent hazing. The SCHA specifies that any such program implemented by an institution be “research-informed” and available “campus-wide” to effectively reach students, staff, and faculty. Further, the SCHA suggests that the program include “skill building for bystander intervention, information about ethical leadership, and the promotion of strategies for building group cohesion without hazing.” Therefore, if an institution does not have a hazing prevention and awareness program in place, or such program does not comply with the SCHA’s requirements, the policy must be in compliance on or before June 23, 2025.
In conjunction with implementing a hazing prevention and awareness program, the SCHA also requires an institution to create a hazing policy statement reflective of its anti-hazing policies on or before June 23, 2025. Pursuant to the SCHA, the hazing policy statement must include (1) a “statement of current policies relating to hazing (as defined by the institution)”; (2) the process by which someone may report an incident of alleged hazing; (3) an overview of the institution’s procedure for investigating a claim of hazing; and (4) all applicable local, state, and tribal laws.
Notably, while the SCHA requires institutions to enact anti-hazing policies, it does not specify what information should be included within those policies. However, the SCHA does mandate that the policy statement describe the institution’s hazing prevention and awareness program. Further, the information contained within the policy statement must also be included within the institution’s hazing prevention and awareness program. Therefore, institutions may want to immediately either begin reviewing their current hazing policies and prevention and awareness programs or begin creating policies and programs to ensure compliance with the SCHA’s guidelines.
Federal Definitions for ‘Hazing’ and ‘Student Organization’
The SCHA is the first law to provide federal definitions of “hazing” and “student organization” for purposes of Clery Act reporting. These definitions are important, as they dictate what incidents are deemed “reportable incidents” for higher education institutions to include within their Clery Reports. Because the SCHA’s definitions for “hazing” and “student organization” are broader than most state laws’, to the extent that these definitions conflict with state or local laws, institutions likely should utilize the new federal definitions of “hazing” and “student organizations” when drafting the applicable incident report in order to ensure compliance.
“Hazing” is defined under the SCHA as “any intentional, knowing, or reckless act committed by a person (whether individually or in concert with other persons) against another person or persons regardless of the willingness of such other person or persons to participate, that (I) is committed in the course of an initiation into, an affiliation with, or the maintenance of membership in, a student organization, [e.g., a club, student government, athletic team, fraternity, or sorority]; and (II) causes or creates a risk, above the reasonable risk encountered in the course of participation in the institution of higher education or the organization (such as the physical preparation necessary for participation in an athletic team), of physical or psychological injury.”
The SCHA provides a list of examples of conduct that “causes or creates a risk,” including:
“whipping, beating, striking, electronic shocking, placing of a harmful substance on someone’s body, or similar activity”;
“causing, coercing, or otherwise inducing sleep deprivation, exposure to the elements, confinement in a small space, extreme calisthenics, or other similar activity”;
“causing, coercing, or otherwise inducing another person to consume food, liquid, alcohol, drugs, or other substances”;
“causing, coercing, or otherwise inducing another person to perform sexual acts”;
“any activity that places another person in reasonable fear of bodily harm through the use of threatening words or conduct”;
“any activity against another person that includes a criminal violation of local, State, Tribal, or Federal law”; and
“any activity that induces, causes, or requires another person to perform a duty or task that involves a criminal violation of local, State, Tribal, or Federal law.”
Further, the SCHA defines the term “student organization” as “an organization at an institution of higher education (such as a club, society, association, varsity or junior varsity athletic team, club sports team, fraternity, sorority, band, or student government) in which two or more of the members are students enrolled at the institution of higher education, whether or not the organization is established or recognized by the institution.” However, the SCHA does not define what constitutes “above the reasonable risk” or what actions establish “an affiliation with” a student organization.
Summary of Critical Reporting Deadlines
Pursuant to the SCHA, the critical reporting deadlines are as follows:
January 1, 2025: Institutions must begin compiling statistics on hazing to include in their 2026 Clery Reports.
June 23, 2025: Institutions must publish their hazing policies and prevention programs.
July 1, 2025: Institutions must have systems in place for documenting violations of their anti-hazing policies in order to include those violations within their Campus Hazing Transparency Reports.
December 23, 2025: Institutions must publish their Campus Hazing Transparency Report on their website, documenting violations occurring since July 1, 2025.
October 1, 2026: Institutions must include 2025 hazing statistics within their Clery Reports for the first time.
Key Takeaways
As of January 1, 2025, institutions may want to begin collecting data for mandatory Clery Reporting. Institutions may want to confer with their campus Clery Act coordinators and other applicable staff to understand what constitutes an incident of “hazing,” how to properly count and document each incident of hazing, and which campus groups constitute “student organizations” under the Stop Campus Hazing Act.
Institutions may want to complete a thorough review of all current anti-hazing policies and/or enact anti-hazing policies on or before June 23, 2025. All policies are required to comply with the definition of “hazing” as outlined within the SCHA, include information on how to report an incident of alleged hazing, and outline the process of investigating an incident of alleged hazing.
Institutions may want to update and/or create hazing prevention and awareness programs for students, faculty, and staff.
Institutions may want to ensure that student handbooks and other institutional documents reflect the SCHA’s requirements and definition of “hazing.”
Lastly, institutions may want to ensure staff, including campus security authorities and campus Clery Act coordinators, are properly trained and notified of their responsibilities when a report of alleged hazing is made and have established a system for the collection, reporting, and documentation of the required data and information on hazing incidents.