Jon Fansmith: Good afternoon, everyone. We are coming to you this afternoon with only 45 minutes and a whole lot to talk about, so we appreciate you taking the time to jump in. There is certainly a lot going on, and we continue to appreciate the interest and engagement from our membership and others on what is going on here. As always, I am your host, Jon Fansmith, ACE’s senior vice president for Government Relations and National Engagement, and I am joined by my amazing co-hosts, Mushtaq Gunja and Sarah Spreitzer. Hey, guys.
Sarah Spreitzer: Hey.
Mushtaq Gunja: Hey, Jon.
Jon Fansmith: We have a lot to talk about and not a lot of time to discuss it in and, much like last week, a strong audience response. Reminder, you can put questions to us in the chat. We will be checking it, and we’ll be going forward with that. But, Mushtaq, where should we begin this week? There is so much to touch base on.
Mushtaq Gunja: Yeah. I’m going to be monitoring the chat, the Q&A, and trying to field as many of these questions and pass them along, answer as many of these things as we possibly can. We received 75, 80 questions in advance too, so no shortage of things to talk about. Here’s my first question to both of you. We all did a dotEDU Live last week. It feels like three years ago. A lot has happened in the last week. Jon, let’s start here. Why don’t you catch us up? When last we met, we were talking about a spending freeze. Much has happened along with that freeze in the past week. Where are we?
Jon Fansmith: The spending freeze is a great place to start because, as we were doing this last week, things were changing on that front. Later that day, as a matter of fact, the administration said that they were rescinding the OMB memo due to confusion and the uncertainty it was causing. Then, confusingly, the White House press secretary came out and said, “Well, we are rescinding the memo, but we’re implementing the policies that underlie the memo,” which seemed to imply that rescinding the memo wasn’t actually changing anything.
All of that was against the backdrop of two different federal courts, one in Washington, DC, one in Rhode Island, hearing challenges to the spending freeze. In both of those cases in the courts... In the Washington, DC, case, it was a suit brought by a number of nonprofit groups, particularly in the health care space. In Rhode Island, interestingly, 22 states’ attorneys generals joined together to bring suit to block the OMB memo. In both cases, temporary restraining orders were granted blocking the administration from implementing the spending freeze, essentially saying the federal government needs to go back to the status quo, what was in place before. Generally, I think that was understood, although I’d appreciate both your takes on this, status quo in this case, meaning before any of the administration’s executive orders, not just specifically the OMB memo.
Clearly, there’s some uncertainty around this. We’ve had conversations. Did the temporary restraining order in Rhode Island only apply to the 22 states whose attorney generals had brought the suit? Was it actually a national restraining order? Practically, what we’ve seen is at least that the administration is treating it as if it is a national restraining order. They sent guidance to contractors as of 9:00 a.m. Monday morning, saying, essentially, “Because of this court’s decision, we are resuming standard practice.”
That said, and Sarah, I know you brought this to my attention in a couple of different cases, we continue to hear from campuses that the compliance with that restraining order seems to be uneven. Different agencies, some have fully reopened funding and restored the process of funding different grants and awards that are already in place. Others, it’s a little bit more scattered, and we haven’t seen what we would think of as full compliance.
Sarah Spreitzer: It’s interesting, Jon, that you said that it applies to all the executive orders because the way I think some agencies have been interpreting it is that the DEI executive order is still in place. And in fact, we just saw another suit get filed against specifically the DEI order. But what we’re seeing at several of the federal agencies is they’re stopping grant programs or stopping funding for DEI grant-funded activities. We’ve also seen, and I know we’re going to get into a broader conversation about this, but stop work orders at USAID and at the State Department, which that has not changed.
Then we’re also seeing a slowdown, I think, in grant reviews and confusion about some of the federal websites being available. NSF, their system to draw down money from already funded grants, that was stopped but then brought back after the injunction was issued by the courts. But I have heard that other agencies, those systems are still blocked so that people cannot draw down from existing grants. Again, with many of these agencies, workers are being told, like at USAID, not to come into the office. So it’s really difficult for PIs to get answers about all of this stuff that’s going on.
Mushtaq Gunja: It sounds to me like there are some grants and contracts that are still either shut down temporarily, maybe even more than that. Others are back up and operational. Do you have any knowledge about whether it’s the grants that are more internationally focused that are the ones that are on pause versus the ones that are domestic, or does it feel like it’s more agency by agency, PI by PI?
Sarah Spreitzer: I think it’s agency by agency. Again, it’s not domestic. I think most international work is stopped because of that USAID, State Department stop work orders. But then the DEI stuff, we’re definitely seeing at NIH, NSF, Department of Energy, and other federal research agencies. Those have not been walked back is my understanding, even though the injunction stands with the OMB freeze. So it’s almost like, I think the administration seems to be interpreting it that, the executive orders were issued, but they’ve been stopped on the full implementation, and now they’re implementing these executive orders agency by agency.
The other thing I thought was interesting is I think it was the White House press secretary said it was never a funding freeze, that it is a pause, or that was under an FAQ document that was released regarding the OMB. So we’ve seen that messaging going on. We saw this at the beginning when there was the pause on NIH external messaging and meetings because they said it was an opportunity for the administration to review policies so that they weren’t characterizing it as a freeze but rather a pause.
Jon Fansmith: I’ll say, we’ve focused so far on the funding pauses. I think the point Sarah made, which is really helpful here, is it certainly seems to vary a little bit agency by agency, even within agencies, what the impact will be and whether there’s an interpretation of the restraining orders as saying any of these efforts to freeze funding are barred, or is it only the broad-based, every element of funding this period through February 8th where agencies would have to justify each program, whether that effort that was encapsulated in the OMB memo, that is being barred, but the program by program review to see if there’s compliance with the executive orders around DEI or gender or other issues, whether that can go forward. As you can see, and as we’ve been hearing, different agencies are interpreting that in different ways, which, again, I think speaks to some of the challenges we have in dealing with this, that we’re in relatively uncharted waters, and even the federal government as a whole doesn’t seem to have a lot of clarity or coordination about how they’re handling it.
Mushtaq Gunja: I think we saw that even during last week’s meeting where the press secretary was saying something that I think probably was not the smartest thing to say legally and seemed to be at odds with what the lawyers were arguing in court at that time. There’s a note in the chat: the TRO suspends the freeze, but the EOs are still in effect. Maybe? Yes-ish. But the District Court decisions in Rhode Island and now in DC try to preserve some version of the status quo ante to make sure that where we were pre-EO would still be where we are. But we are in uncharted waters, as you say, Jon, because the executive has some authority probably to pause some grants on a case-by-case basis, but probably not the blanket way in which they did is my reading of what these district courts have ruled.
Jon Fansmith: And-
Sarah Spreitzer: The other thing... Oh, I was just gonna-
Jon Fansmith: I was just saying that Mushtaq persuaded me on that interpretation too, and I think therein lies some of the confusion. I don’t know that that same interpretation carries from agency to agency.
Mushtaq Gunja: Right.
Sarah Spreitzer: I was just going to say, I think there’s also confusion for programs that have been created under statute. For instance, on DEI, there’s programs that were created like TRIO. We have a lot of questions in the chat about the TRIO programs. There were some new programs created at the National Science Foundation under the CHIPS and Science Act of 2022. So does the executive authority extend to end the programs that are actually authorized by Congress? I wonder if that gives us an opening to transition to what’s happening at USAID.
Jon Fansmith: Before we do, can I just say one thing too because I saw a bunch of questions about the spreadsheet that was referenced last week? I will say, at least in this case, it seems very clear. That spreadsheet of a wide range of programs, that was part of the broader OMB effort to freeze all federal funding. That is no longer in play to the extent that agencies are now required to do that while the restraining order is in place. That said, certainly this administration wants agencies to look at every source of funding with a fine-tooth comb and identify areas where it may or may not align with the other executive orders. So that spreadsheet is dead for the time being. The temporary restraining order clearly covers that effort. It was part of the broader OMB memo. Again, that does not necessarily mean that every program under that will not be subject to some level of scrutiny by the agencies.
Mushtaq Gunja: I want to move over to USAID. Of course, the news has now been widely reported that the Trump administration is going to issue some sort of executive order that was going to do something to try to dismantle the Department of Education. I’ll ask you about that in just a second. But before we get there, there’s a whole set of questions, very understandable questions, about the lack of clarity about what is covered under DEI, DEIA. Vicki Jeppesen asked, “Well, is there a definition for DEIA within grant funding: ethnicity, gender, incarcerated, underrepresented, at-risk?” What is covered here? What do we know about that? Jon, what can you tell us about the lawsuit that was filed last night?
Jon Fansmith: So a couple quick things. What we know, there is no definition of DEI or DEIA in the executive orders. Again, what we have tended to see from, again, agency to agency and even within agencies is the questions that have gone out to institutions and other contractors, there’s not a lot of consistency. You have seen reports, I saw them online, I’m sure many of you have seen them, from an NSF researcher about a very long list of keywords that they want reporting on. We’ve seen much shorter lists from some agencies, other lists equally as long but with different word choices. There does not seem to be any consistency or rhyme or reason. It does not seem to reflect that OMB dictated certain things. It seems to be a agency by agency or program by program stab at what are words that might be captured under a diversity, equity, inclusion, accessibility blanket. So we don’t know, certainly, and I think, again, even... At least with the OMB order, we had those nine questions, as it were. You had a certain set of criteria you could say, “This is what they attempt to be evaluating.” Now at this point, I think it’s very unclear what they’re attempting to evaluate.
Then to that point, this other lawsuit that was filed last night, our colleagues at the National Association of Diversity Officers in Higher Education, representing campus diversity officers, and the American Association of University Professors, representing faculty, joined some other associations, I think restaurant workers, a few other groups, the city of Baltimore, Maryland, in a lawsuit—love for Baltimore there, Mushtaq—specifically to block the DEI executive order. A number of arguments asserted in that case a little bit different than what we’ve seen so far in the cases that were really focused on the funding side. This is particular to the issue of the executive order and the legality of the executive order in the first place.
We’ve also, of course, and I think we’ve mentioned this before, heard about other possible efforts in this area to block the implementation of that executive order. I think we expect to see more legal challenges to it, but certainly an important step to see NADOHE and AAUP and others joining to target specifically that executive order and block its implementation.
Mushtaq Gunja: For what it’s worth, there are arguments that are made in that lawsuit about what’s called ultra vires actions. This is the president exceeding his authority to overstep the separation of powers and encroach on the prerogatives of the legislative branch vis-à-vis spending. Great. But there are also specific arguments that are made to the questions in the chat that what is being blocked here around DEI is vague. There’s no definition about what that is, what it encompasses. It seemed like pretty strong arguments, I think. And then there’s some First Amendment arguments as well that have been asserted. District Court of Maryland will take this up, and there was a temporary restraining order that was asked for in that case. I have not seen in the last couple of hours whether or not any action’s been taken on that case, but please let me know if you guys have seen differently.
Can I just make sure that I double back on this? TRIO grants related to HBCUs and Tribal Colleges, Second Chance Pell? At risk? Not at risk? Do we not know? Is it too soon to tell? What can we tell the audience about all of that?
Jon Fansmith: I would echo something Sarah said earlier. She talked about the difference between programs that are statutorily authorized and funded through Congress versus more discretionary grants and awards made through agencies. An executive order, and it bears repeating, is not a law. It doesn’t supersede a law. In many cases, especially in the Title IV space, it doesn’t supersede regulations where changes to regulations mandate a negotiated rulemaking process. There are pretty clearly defined legal lines around what you can do with those programs. Certainly things like Title III and Title V, things like the Title IV financial aid programs, TRIO, others that have a statutory basis behind them, congressionally-directed funding through the appropriations process, have a much stronger legal defense that would prevent an administration, or should, I should say in this environment, should prevent an administration from messing with them.
Is that a guarantee that they will be safe? No, and I think we’ve seen some things from the administration, rescinding executive orders about promoting equity among underrepresented populations, whether that’s Tribal Colleges or at HSIs or others, where they’ve indicated some hostility possibly to those programs, those underlying programs. But really, I think the threats there will come later in the year when we see the appropriations process, this administration’s budget requests, where that will come from then. This process underway where certainly TRIO gets talked about a lot in the DEI space as a target, some of the Title III, Title V programs, I think, get talked about, but they are in a different place in a lot of ways.
Sarah Spreitzer: But I think some of that goes to the actions around USAID this week. We’ve seen these efforts by the White House, by the new Department of Government Efficiency to really shut down USAID. The plan was to have the programs absorbed by the State Department, which seems to be the ultimate goal. But we’ve been talking this week about is USAID actually authorized by Congress? And in fact, there’s not an authorization bill for it. It was created by executive order. And I think that this is likely going to be tested in the courts too, the president’s executive authority to completely end a federal agency. But I think it may come down to these federal agencies that are created under executive order, like USAID or perhaps an agency like NOAA, which sits under the Department of Commerce, as opposed to the Department of Education, which we know is created or is authorized under statute.
Mushtaq Gunja: This is a perfect segue, Sarah, I think to us talking about the reports in the news that the Trump administration is looking to dismantle the Department of Education. It is more complicated than it probably would be to affect USAID, as you said, because Congress has statutorily authorized the Department of Education, has said certain programs within the Department of Education shall be run at the department, and yet, question mark, question mark, question mark. Jon, Sarah, what do we know about...? What do we know?
Sarah Spreitzer: I want to know if Jon is going to update his bet, where we were talking about this back right after the election that this was one of the things that the Trump campaign had promised, that they were going to dissolve the Department of Education. Jon kept saying, “No, no, no, that can’t happen because it’s under statute.” My theory is you can actually really shrink the Department of Education because you can move a lot of pieces of it. You try and figure out a way to put the student loan programs through the Department of Treasury. You can move the Office of Civil Rights over to the Department of Justice. And then you have a much smaller Department of Education.
What we’ve heard that maybe in this executive order, we started picking up rumors about this last week, is that there will be two pieces to it. My guess would be the two pieces that can be taken out by executive authority and then the other parts that would have to be unwound through congressional action. Interested to know if Jon’s changing his tune at all on whether or not this can actually happen.
Mushtaq Gunja: Jon, before you answer, shots fired. What’s that-
Jon Fansmith: I like how Sarah’s turned a momentous, crucially important public policy issue-
Sarah Spreitzer: I have to find joy somewhere.
Jon Fansmith: ...and a balance of constitutional authority into an attempt to dunk on me. Look, I actually stand by my viewpoint.
Sarah Spreitzer: Okay.
Jon Fansmith: Look, you can talk about moving functions out of the department. You can talk about diminishing the Department of Education. But fundamentally you need statute to overturn both the creation of the Department of Education as well as multiple of the programs, as you pointed out, Mushtaq, at the Department of Education, specifically reference decisions by the secretary, the authorization of the secretary, disbursement through Department of Education.
Locations, there’s structural alignment with programs within offices at the Department of Education. All of that is in law. You can’t simply say, “We don’t want it to be there anymore, so we’ll move it somewhere else.” Your ability to internally restructure the department, things like FSA, Federal Student Aid office at the Department of Ed, has a unique designation as a performance-based organization, which is also in statute. There are a lot of things to unpack that I think the idea of abolishing the department oversimplifies.
Now, are they going to try? Clearly, this is what the reports are, but most of the reports are focused less on this concept of where will things be moved and more the secretary will be required to create a plan. We’ve heard alternatively between 90 and 120 days—they’ve used 120 days in other executive orders including the DEI one—to abolish the department. I would say one thing, a plan is not the same as an action. Two, a plan rhetorically addresses what the president was talking about. He’s going to do an effort. If that’s blocked by the courts or blocked by Congress, in some ways the rhetorical value of that remains. He gets to say, “I’m trying to do this, and a minority of Democrats in the Congress or liberal justices are keeping me from doing this.” It is a lot.
When they had a bill in the last Congress to abolish the Department of Education in a vote in which every Republican member could vote with the safety of knowing it would never be enacted because Joe Biden would never sign that bill, still 40 Republican members of the House voted against doing that. This is not some wildly popular concept. Especially, if you are in a district that’s even a little bit moderate, the idea that you’re going to go back and say, “The agency that provides funding for your local schools, the agency that sends Pell Grants to your students, the agency that makes sure that civil rights violations are addressed, I was the one who helped destroy that”? It’s not a big winner, and I don’t think there’s a lot of people in Congress rushing to embrace this.
Sarah, I think you’re right. I think what we have seen with USAID gives a lot of pause. You look at the things they will do. Frankly, let’s be clear, this administration in a number of areas that has done things that I think most people would define as clearly illegal, clearly contrary to a number of laws. Set aside norms, but laws, they are willing to push that envelope. We’re in uncharted territory in that regard. Will they attempt that at the Department of Education? It certainly seems reasonable to expect so. In terms of what the outcome will be? Well, I think that’s still far more up in the air. Just because they want to do it, it doesn’t necessarily mean they could do it.
Mushtaq Gunja: It seems to me that there’s probably a range of possibilities here from Trump shutting off the lights in the Department of Education and functionally shutting it down in that way to trying to move certain parts of the department to other agencies. As Jared notes and as you noted, Jon, not clear that they can do that under the Higher Education Act. Certain things that we’ve talked about moving might be required to be at the Department of Education.
They could also do what a number of folks are noting in the chat, which is, what if they just put a bunch of people on leave, just slow the whole thing down? Roslyn is noting, Hi, Roslyn, that she’s trying to fill out FAFSA and she’s having a hard time getting through. Now, maybe it’s just normal FAFSA glitches or maybe that they just don’t have the right protections in place so that when something goes down, it can be backfilled. Then there’s a lot of information out there that Musk and team are in there getting access to folks’ data. So both on the leave side and on the data side, what do we know? There’s a lot of stuff out there. What do we actually know, if anything?
Jon Fansmith: Look, and I’ve been tracking some of the comments in the chat, too, and I think there is a lot of legitimate concern. The “Department of Government Efficiency” is not a federal agency. It’s not even operating under the auspices of an advisory committee as the Administrative Procedures Act details. It is very unclear to me, and I say it’s very unclear to me only because I lack the confidence in my legal abilities to say, that this is an extralegal operation. The fact that the staff for this operation, who are not federal employees, who have not been appointed to roles, are being given access to things like Treasury Department data, salary information to federal employees, and now, as we’re hearing, access to student financial aid information, at least, as The Washington Post is reporting, of currently enrolled and receiving-soon aid recipients.
Look, again, I am not an expert in this area, but that seems to me like a fundamentally illegal violation of people’s privacy. That information is highly protected for a reason. It is incredibly valuable. Until there is some clarity about to what purpose this information is being accessed and what the actual legal authorities to be doing it are, people should be concerned. This is not normal. I don’t want to be alarmist, but we are very much in a place in which we don’t know where the limits are. It’s going to go to the courts. We have not seen action by Congress. In many ways, these are actions that undermine Congress’s authority. I think in a different Congress, you might have seen more of a willingness to confront the administration just from a constitutional balance perspective. But there are great reasons to be concerned here.
Sarah Spreitzer: Now, I would add, Jon, one of the reasons that we heard that the executive order dismantling the Department of Education was pulled back late last week was because Linda McMahon has not undergone her confirmation hearing. It hasn’t been scheduled yet. She will likely receive questions about this executive order even though we haven’t seen it yet. Because it’s been leaked to the press, people are talking about it.
Jon Fansmith: To your point, Mushtaq, about just interrupting the operations of the agencies, again, USAID may be instructive here. Today, they sent a notice to all Washington, DC, USAID employees telling them they’re being placed on leave. That’s not a thoughtful implementation because there are concerns about specific program administration. You look at the range of USAID, I have seen some of the critiques of where funding goes, but certainly a pretty broad-based defense of areas of support that are hugely bipartisan and popular. Think about things like efforts around disease prevention, AIDS prevention in Africa that were started by George W. Bush under his administration. This is not actions that you say are supportive of better governing or even greater efficiency. It’s broad-based attacks on the functioning of these agencies.
Mushtaq Gunja: Comments in the chat asking whether there’s a cause of action under FERPA, whether or not we’ve seen any lawsuits yet under FERPA. Unless you guys tell me differently, I think the answer is no, not quite yet. I think I’m not going out on a very thin limb to say I think those lawsuits are going to be coming because a lot of people have standing to say that somebody who’s unauthorized has gained access to our records. I’m not sure who the best plaintiff will be there, but I have to think that those lawsuits are going to be coming and are going to be coming relatively soon. Our students’ data may be at risk. I don’t know what we can do about it. Do you have advice, Jon, Sarah, to our institutions vis-à-vis data breaches and the rest?
Sarah Spreitzer: I think... Yeah, go ahead, Jon. You probably have better advice than I do.
Jon Fansmith: I don’t know if I have better advice. I feel, it’s probably coming across, a certain level of frustration because we would like to offer answers to people. We would like to give clarity, and we’re not necessarily in a place where that’s possible, certainly not to the extent we’d like. I would say, and Sarah touched on this and I think it’s important, when the big freeze went into place last week, the administration did not rescind that guidance because they had a change of heart. They did not start adding programs like Pell Grants and student loans to the list of exempted programs because they suddenly didn’t want to review those programs and see them as leverage. They did it because members of Congress and governors and others and constituents were flooding them, directly and indirectly, publicly and privately, to say, “These actions will be deeply harmful and destructive to a range of operations.”
If we want to talk about advice to give to people, the advice I would ask is reach out to your members of Congress. Tell them about the connections, not just on your campus, but you as an individual, you as your family, where these programs impact your lives, and make sure that they know this is the implications of these things. It is easy, in some ways, if nobody speaks up to assume nobody cares. What we saw was a lot of people spoke up, and the message resonated very quickly. I’ll also say, ACE, we put out this call to our members last week. Certainly, if you have examples of the harm that you’re willing to share across these areas, and some of them, like the privacy violations, I think it’s harder for us to be in this space, but whatever it is, where you have your concerns, let your elected officials know. It does actually make a difference. And certainly given the size and scope of what we’re talking about, there needs to be as much noise as possible.
Sarah Spreitzer: Do we want to talk a bit about the EO that we did see, I think on Thursday, about combating antisemitism-
Mushtaq Gunja: Thank you.
Sarah Spreitzer: ...since that one was-
Mushtaq Gunja: Tell us a little bit about, it Sarah.
Sarah Spreitzer: ...targeted toward higher ed.
Mushtaq Gunja: Go ahead.
Sarah Spreitzer: I read it when it got issued on Wednesday. I think our producers just put it into the chat. This one is very much, I think, targeted towards institutions of higher education and addressing some of the campus protests that we saw back in 2023 and 2024. What did you guys think? I would just add, we’ve already seen them start to implement it. The Department of Education announced five proactive investigations against institutions. We also saw the Department of Health and Human Services launch four investigations against institutions of higher education with medical schools. I found that very interesting because the practice has always been agencies that receive complaints, Title VI complaints for colleges and universities, usually tend to refer those back to the Department of Education because it’s tied to our Title IV eligibility. What did you guys think?
Jon Fansmith: I think, in many ways, we got a preview of this last year in the House of Representatives where after the first Education and Workforce Committee hearing drew so much national attention, House Republicans talked about pursuing a whole of the House approach, and they brought in committees of jurisdiction on science and oversight and government reform and ways and means, just a variety of different areas where there are federal interactions with campuses. The goal is very clearly to say, “Look, there’s a lot of touch points. There’s a lot of places where the federal government has leverage with campuses. We have a viewpoint that institutions are not sufficiently addressing antisemitism, so we’re going to use all of the levers at our disposal.”
As you pointed out, Sarah, there’s a common practice for how this is handled with referrals back to the Office for Civil Rights at the Department of Education. The fact that HHS is moving out on its own to initiate investigations, there’s this attempt really I think as a force multiplier to say, “Different agencies have different statutory authority. We’re going to use every avenue to push forward our belief.”
I also think it’s interesting because when you talk to most people, not just in higher ed but I think actually even more so outside of higher ed about the urgency of this issue, most people tend to see this not as really a top-of-mind issue or an area for prioritization by the federal government. Campuses clearly struggled through the fall and spring semesters last year, but over the summer there was a clear reset—We’ve talked about this on here—I think to the extent now that a lot of the times what I hear is more concern about institutions perhaps overstepping their bounds to suppress speech rather than to allow hateful speech or harassing activities.
It does not seem to be something the American public is that focused on. It does not seem to be the sort of thing where we’ve seen the kind of incidents that raise a level of concern. So eight investigations announced within four days of the executive order being issued certainly shows the administration’s putting a lot of attention to this. Again, don’t know if that necessarily reflects the facts on the ground, though.
Sarah Spreitzer: I would flag, it also included a provision in there for State and DHS to look at whether or not international students are participating in campus protests and, therefore, could be out of compliance with requirements in their student visa that you’re not allowed to provide support for a known terrorist organization, such as Hamas, or espouse or encourage terrorist activities. That’s always been interpreted as financial support, and I think participating in a protest has not been considered as falling under that provision of the Immigration and Naturalization Act. But it’s clear State and DHS are likely going to issue some guidance and some rules around that to our institutions to watch very closely.
Then the other thing, Jon, to bring it back to my comment about the Department of Education and whether it can be dissolved, DOJ has also been tasked with doing a task force with the Department of Ed and HHS around antisemitism. I think the way it’s been handled previously is OCR would receive these reports, not just from students, it could be members of the public, investigate them, and then come to an agreement with the school that you would have to sign off on in order to resolve the Title VI complaint. Switching that to DOJ, that means that you could be looking at, I think, Mushtaq, like civil cases or looking at things more in the courts rather than going through some sort of resolution-type process like we’ve seen at OCR.
Mushtaq Gunja: DOJ has at its disposal a whole range of possible ways to remedy situations, but certainly that’s possible. Ironically, I think one of the reasons, Jon, that you were a little bit skeptical about the idea of this administration trying to shut down the Department of Education is because the Department of Education is the place where you do a lot of these investigations, and they were very clear that they wanted to do them. So I don’t know. I guess we’ll have to see how that all shakes out. Maybe they’ll move things to DOJ, or maybe they’ll just try to have some of these investigations happen in different realms. I don’t want to minimize these investigations, but theoretically, a good investigation should take some time. There will be facts on both sides. We’ll have to figure out what happens. So let’s see how these shake out over time.
There’s a question in the chat, or maybe it was in the Q&A, about whether the courts are going to be able to act quickly enough. I do think that this is a very important place for us to pause. I’d love to get your reaction on this. It seems to me I got a couple of quick thoughts. The first is things are moving very quickly, but lawsuits are being filed pretty quickly. As we saw in DC and in Rhode Island, courts are willing to move pretty quickly as well to at least issue temporary restraining orders, preliminary injunctions, brief administrative stays. So I think that those may continue to occur.
The worry I have is whether the Trump administration is going to fully comply with these laws or whether they’re going to continue to maybe act in ways that are contrary to both court rulings and existing law. I don’t know. We’ll have to see. I think the courts will get increasingly frustrated and will be even more and more directive if the Trump administration is seen to be acting in ways that contravene relatively clear district court orders. I think that’s what we saw in Rhode Island.
So maybe a question for you, if the courts are going to act pretty quickly, how should our campuses think about complying with EOs or other actions by the Trump administration that may be put on pause given litigation? How do you all think about that?
Sarah Spreitzer: I’m going to let Jon take this one first because I think he has a good answer. I think. I’m not positive.
Jon Fansmith: Well, I’m thinking it through. There is this element where, and you and I have had this conversation, Mushtaq, do we think that this is an administration that is pushing the boundaries of the law to try to establish precedent that they have authorities other administrations simply haven’t sought to define? Or is this frankly a willful disregard of the limits of the law? “If we move fast, we can accomplish our goals before the courts can reel us in.” Honestly, I started in a place of this is a strategy to get clarity on what the limits of executive authority are by pushing as hard as possible. I think now I am more persuaded by the theory, which a lot of people have been saying for a long time, that this is the flood the field, do as much damage as possible, let it all get sorted out in the aftermath, but seize the moment when you have it to try to move ahead of how quickly the courts react.
I agree with you. I think the courts will quickly lose patience for some of these things. I think there’ll also be some defining precedents that will get in place that will further limit their ability to do things so that the response will be more immediate. But look, we did not contemplate what is happening at USAID a week ago, and we certainly didn’t contemplate it three months ago. As I’ve made pretty clear, I think there’s a pretty willful disregard for what the law is understood to be. It’s even more shocking, really, and we’ve said this, we’re in a post-Chevron world where the Supreme Court has very clearly said, “Deference to executive agencies is dead.” We are using executive agencies to push the limits in that environment. Yeah, I don’t know that my answer is any better than what you would come up with, Sarah, but certainly at least the consistency of what we’re seeing, troubling, but maybe this reveals the intention.
Sarah Spreitzer: I would say, as a government relations person who’s been doing this for a long time, who’s gone through various administrative changes, this is not like anything we’ve ever seen before. But I fall back on, we need guidance from the agencies. I don’t think that institutions should be trying to pre-comply with something that they may be expecting to come and that we do need clear guidance. Some of that is, if it’s being tested in the courts, the courts are saying, “You have to define DEI. You can’t do an across-the-board funding freeze. You have to justify. You have to look at which programs are authorized, which programs are funded.”
I fall back on the rule of law, but really how our government is shaped by the three branches. The executive authority can’t be done in the space without the courts and the legislative branch. I keep telling people to remain flexible. I keep thinking about getting through various government shutdowns. It’s not the same. It is definitely not the same. But one of the things that I think our institutions have always shown is that they can be incredibly responsive when they come up to these challenges. We’ve been through COVID. We’ve been through government shutdowns. We’ve been through these things that have tested our systems. I think that that’s the important thing, is really to remain flexible and to seek out that guidance as much as possible.
Mushtaq Gunja: A bit up on time. I know at the risk of asking a question that is decidedly not going to be answerable given that we’re not in a one-size-fits-all, we have publics, we have privates, we have institutions that are in red states and in blue states, but Jon, Sarah, advice for our institutions in the short term? I know, Jon, you said flood members of Congress. Contact our representatives. Anything else that you would recommend we do in the short term?
Jon Fansmith: Almost contrary to my statement about be very reactive in expressing your concerns, I think the other thing, and we’ve been saying this from the beginning, I think Ted’s articulated this really well, there’s no value in overreacting. There’s no value in pre-complying. There’s no value in trying to get ahead of what this is because we don’t know where this is going, and we don’t know when it will stop and what the limits will be.
I’ve said this time and time again. We work with colleges and universities all the time. We know why people do the work they do. We know how important the mission of an institution is focused on serving students. To the extent that these are efforts, and we know that they are in a lot of ways and we’ve heard it from campuses, are interrupting that work, center that work again. Don’t let this be a process that moves you off of what is core to who you are as a staffer, as a faculty member, as an institutional leader, as part of a community. This is maybe the most important time to refocus your work in those areas. Be thoughtful.
We’ll always comply with the laws when the laws are clear, and when we need to, we will do that, of course. But we don’t need to pre-comply. We don’t need to be overly embracing efforts to undermine things that are still valuable and important that we do. Again, take a breath, use your time, get the best advice you can, and then act in ways consistent with who you are.
Mushtaq Gunja: I think that’s a great place to end. Friends, I fear this will not be the last dotEDU Live that we’ll do on relatively short notice. Please keep an eye out for these. As things progress, as events warrant, we will be back with you. Thanks for hanging in there. Thanks for all you do for our students. Thanks all.
Jon Fansmith: Thank you for joining us on dotEDU. If you enjoyed the show, please consider subscribing, rating, and leaving a review on your favorite podcast platform. Your feedback is important to us, and it helps other policy wonks discover our show. Don’t forget to follow ACE on social media to stay updated on upcoming episodes and other higher education content. You can find us on X, LinkedIn, and Instagram. Of course, if you have any questions, comments, or suggestions for future episodes, please feel free to reach out to us at podcast@acenet.edu. We love hearing from our listeners, and who knows? Your input might inspire a future episode.