A federal judge Friday extended a temporary block on the National Institutes of Health’s plan to slash funding for universities’ indirect research costs amid a legal battle over the policy change.
The nationwide block, which U.S. District Judge Angel Kelley put in place Feb. 10 soon after a coalition of state attorneys general, research advocates and individual universities sued the agency, was set to expire Monday. But it will now remain in place until Kelley has time to consider the arguments the plaintiffs and NIH presented at a hearing Friday morning.
It’s unclear when Kelley will rule. But after the two-hour hearing, she said she certainly “has a lot of work to do” to before making a decision.
“This case is not about whether as a policy matter the administration can target waste, fraud and abuse,” Katherine Dirks, an attorney for the Massachusetts attorney general’s office, told the judge during the hearing. “It’s contrary to the regulations which govern how these costs are determined and how these payments are disbursed. If there were an intention on the administration’s part to change the mechanism by which those occur, there’s a process for it—a statutory process and a regulatory process. Neither of those were followed here.”
But the NIH’s legal team said the agency has the right to unilaterally cap reimbursements for costs related to research—such as hazardous waste removal, facilities costs and patient safety—at 15 percent.
“This is not cutting down on grant funding,” said Brian Lea, a lawyer for the NIH, said at Friday’s hearing. “This is about changing the slices of the pie, which falls squarely within the executive’s discretion.”
Counsel for the plaintiffs, however, argued that the policy is unlawful and, if it’s allowed to move forward during a protracted litigation process, will cause “irreparable harm” to university budgets, medical breakthroughs and the patients who may not be able to enroll in clinical trials as a result.
“A clinical trial is for a lot of people a last hope when there’s not an FDA–approved medicine that will treat their condition. Any minute that they’re not enrolled in that trial brings the risk of irreparable harm,” said Adam Unikowsky, an attorney for the plaintiffs. “Part of these institutions’ mission is serving these patients, and this cut will irreparably harm their ability to fulfill that mission.”
Since 1965, institutions have been able to periodically negotiate their reimbursement rates directly with the federal government; university rates average about 28 percent. However, rates can vary widely depending on factors such as geographic cost differences and the type of research, and some institutions receive indirect reimbursement rates of more than 50 percent of their direct grants.
Although the NIH argued in court that indirect costs are “difficult to oversee” as a justification for cutting them, the plaintiffs refuted that claim, pointing to a complex negotiation process and regular audit schedule that’s long been in place to ensure the funds are being used to support NIH research.
In fiscal year 2024, the NIH sent about $26 billion to more than 500 grant recipients connected to colleges—$7 billion of which went to indirect costs.
This isn’t Trump’s first attempt to cap indirect costs, which Elon Musk—the unelected billionaire bureaucrat overseeing the newly created Department of Government Efficiency—recently characterized as a “rip-off” on X, the social media site he owns.
In 2017, Congress rebuked President Trump’s attempt to cap indirect costs, and it has written language into every appropriations bill since specifically prohibiting “deviations” from negotiated rates. Given that, Kelley asked the Trump Administration’s legal team, how in his second term, Trump “can unilaterally slash these previously negotiated indirect cost rates which Congress prevented him from doing previously?”
“The money that is saved—it’s not being saved, it’s being reallocated—will be taken from indirect costs and filed into new grants that will be using the same funding formula,” said Lea, who told the judge he was using air quotes around the word saved. “The money is not being pocketed or being shipped somewhere else. It’s being applied back into other research in a way that best fits NIH and what will best serve the public’s health.”
But Lea’s claims that the money will simply be reallocated contradicted the NIH’s own social media post from Feb. 7, which said the plan “will save more than $4B a year effective immediately,” and Kelley asked for an explanation.
In response, Lea said the NIH’s “tweet was at best sort of a misunderstanding of what the guidance does.”
The Department of Health and Human Services, which oversees the NIH, did not immediately respond to Inside Higher Ed’s request for comment on whether it plans to issue a widespread public correction on social media and its other platforms to clarify its policy and inform taxpayers that their plan to cap indirect costs is not intended to save them any money. As of Friday afternoon, the post was still up on X.
But Unikowsky, an attorney for the plaintiffs, said that funneling money away from indirect costs would still harm the nation’s esteemed scientific enterprise, which is grounded in university research.
“Indirect costs are real costs associated with doing research,” said Unikowsky, pointing to the California Institute of Technology as an example. The institute spent $200 million to build a state-of-the-art laboratory and is counting on indirect cost reimbursements from the NIH to help pay off the debt it incurred to construct it.
“There’s going to be a hole in Cal Tech’s research budget” and the “money is going to have to come from somewhere else,” Unikowsky added.
Unikowsky also listed nine different institutions, including the Universities of Florida, Kansas and Oregon, that have said they will have to lay off skilled workers who support medical research, including nurses and technicians, if the cap goes into effect.
Lea, the lawyer for the Trump Administration, countered that destabilizing university budgets doesn’t amount to immediate and permanent harm warranting injunctive relief on the rate caps.
“That’s not an irreparable thing, or else every business that’s in a money pinch could just come in and get an injunction,” he said. “I understand that many institutions would prefer to use endowments and tuition for other purposes, but unless they’re barred from doing so—and the inability to do so would cause some non-monetary harm—that’s not irreparable harm.”
Although Kelley gave no indication on when or how she plans to rule, some university leaders who listened to the hearing came away optimistic that she’ll favor the plaintiff’s arguments.
“We look forward to the judge’s ruling,” said Katherine Newman, provost at the University of California which is one of the universities suing the NIH. “[We] maintain our position that the Administration’s misguided attempt to cut vital NIH funding is not only arbitrary and capricious but will stifle lifesaving biomedical research, hobble U.S. economic competitiveness and ultimately jeopardize the health of Americans who depend on cutting-edge medical science and innovation.”
The Senate Health, Education, Labor, and Pensions Committee has advanced Linda McMahon’s nomination for Secretary of the US Department of Education (ED). The HELP panel voted 12-11 to approve McMahon, former CEO of World Wrestling Entertainment and co-founder of the America First Policy Institute. According to the Hill, McMahon is almost certain to be confirmed by the Senate. President Trump has directed McMahon to dismantle ED, which includes funding for poor school districts and children with disabilities, in addition to holding a student loan portfolio estimated to be worth $1.6 Trillion. A number of civil rights organizations, including the NAACP, oppose the nomination. DOGE already fired dozens of workers from the small agency.
This article isn’t about which is better for you: faculty profile or LinkedIn profile. It would be great for your online presence if you had both. Hi, I’m Jennifer van Alstyne. I help Higher Education faculty, researchers, and scientists with their digital presence for academics.
I just got off a call with an Associate Professor client. We worked on both his LinkedIn profile and faculty profile together (which just went live, yay!). This professor is really an in-person networker. When we 1st met he said, “people know me,” but if you searched online? At the time there wasn’t a comprehensive academic profile or online presence that could help people know who he is now.
Are you “not really a social media person” too? I’ve written about how I still recommend having a filled out LinkedIn profile if you’re an academic who “doesn’t want to be on social media.” It’s okay to not post on social media. It’s okay to lurk. It’s okay to like or repost without sharing original posts yourself. There are many ways to be on social media as an academic. And what feels right for you now may change in the future too. While I love personal academic websites as a long-term solution for professors, researchers, and scientists, having a website isn’t right for everyone.
However you choose to have an online presence (if that’s a goal for you at all) is fine. There isn’t a one size fits all solution for academics and researchers online.
As an academic who wants to have a stronger online presence, it’s a best practice to update your faculty profile and your LinkedIn profile at least 1/year.
A few years ago I asked a professor client to reach out to his college to ask if they had specific guidelines for their faculty profiles. We were redoing his academic bio. His done for you bio writing package included a new faculty profile. When we got on our call to chat about it, he started laughing, because when the college replied to him, they’d sent back his own faculty profile as “a great example.” 🤣
You can have a “great example” of a faculty profile, and still feel like it doesn’t reflect who you are and what you value as an academic now.
We grinned because the profile we envisioned for him was such an improvement. I say that not to disregard or belittle the work he’d done on his own faculty profile. Like most professors, he’d only ever written his own bios. But the time we created to talk through who he is, his story, and the change he’s working to create in the world? It made such an impact for the words we ultimately chose to share.
Your faculty profile is the 1st place for many of your students, colleagues, and people in your field will go to learn more about you. Some faculty profiles are robust with space for things like your bio, teaching, research, awards, and university media mentions. Others are streamlined with the details people most need like your job title and department and recent publications. Most professors I’ve chatted with express a lack of enthusiasm for their faculty profile, “it’s there, but it isn’t exciting.” And that’s fine, your professor or researcher profile on your university’s website doesn’t have to be enhanced unless you want it to be.
I really like the mix of having both your faculty profile and your LinkedIn profile because professors who come to me with help for their online presence have occasionally reached out in distress:
“No one knew who to ask. I don’t think any of my colleagues have updated their faculty profile in years.”
“The person in our department who knew how to update the faculty profiles left, no one’s been able to update their profile in over a year.”
“My university moved all our faculty profiles to an intranet…that was my whole online presence.”
“They said they’re updating the faculty profile system. There won’t be an option to update my faculty profile for months.”
“The IT people said no emails on faculty profiles, so they’re gone. How are people supposed to get in touch with me?”
That last one had me on high alert. When I ask professors, “How do people usually get in touch with you?” They typically say something like, “People look up my faculty profile, my emails right there.”
Some universities have removed email addresses from faculty profiles in hopes of limiting phishing emails. A few have eliminated faculty profiles altogether. I get that there are IT limitations and protection needs that sometimes force these decisions. But I also deeply mourn the loss of connection that happened to each of those faculty members overnight. What things were lost? What connection?
It’s the same way I feel about adjunct professors, lecturers, and staff who make such an impact on campus, but often aren’t given space on their university website beyond their listed name.
The most frequent audience for your faculty profile is your students, colleagues, and people at your university. But those aren’t the only people who may visit your faculty profile. These are steps you can take to improve your faculty or researcher profile on your university’s website.
Good luck with updating your faculty profile! If you can only focus on 1 thing to improve, choose your academic bio. Your bio is a living document that can adapt to fit your needs. I had a great conversation with Dr. Echo Rivera where I share my top tips for your academic bio. I hope you find it helpful.
There are many ways to have a stronger online presence as a professor or researcher. You don’t need to work with me to be more intentional about how you show up online as an academic. Not sure where you should start? Join my free online presence course to help you know where to focus your time and energy.
I’m happy to help you if you want a done for you academic bio too. It’s hard to be introspective about yourself. It may feel “uncomfortable” or like it’s time “too focused on me.” It’s okay if your brain wants to focus on other things instead of writing a new bio for yourself. That’s okay!
When we work together on done for you bio writing, you’ll get general use bios at different word lengths so you always have something ready to go. It also includes a custom bio like your new faculty profile done for you so you have a document ready to send to the person who implements changes at your university. If you want a “template” easy for you to update and adapt to their academic life for years to come, let’s chat about working together.
I like LinkedIn profiles for academics because they have many more capabilities than your faculty profile. You’re not job searching. You may be wondering, “does LinkedIn still make sense for me?” Let’s find out.
Which of these benefits of having a LinkedIn presence as an academic stand out to you?
Whoa, that list got longer than I expected. That was just a short brainstorm session too.
Did 1 or more of those feel like a good reason for you to be more intentional about your LinkedIn presence as an academic?
P.S. If you’re finding this article helpful, save it to your bookmarks for later. Please share it as a resource if you think a friend or colleague would find it helpful.
In workshops for grad students and faculty, I’ve recommended blocking your calendar, to set time aside in your agenda for your LinkedIn profile. I’m someone who likes deep focused work, so that big chunk of time is often the best way for me to focus. How about you?
Here are 3 other possibilities to explore when it comes to fitting your LinkedIn profile into your academic life:
It’s okay if none of these work for you. If you’re someone who’s been wanting to do it yourself and you just haven’t? It’s okay to get support. Each of my professor clients who’ve chosen a done for you LinkedIn profile had the capability to do it themselves. Some even took my LinkedIn Profile course and found “I just can’t make the time,” and “I just want it done for me.” You can have a stronger online presence through LinkedIn, and we can totally work together on this.
For those of you wanting to DIY your LinkedIn profile as an academic, I hope these tips for your LinkedIn profile help you:
Need to prioritize other things in your academic life? I totally understand. First, it’s totally okay if LinkedIn isn’t a goal for you right now. You don’t need a stronger online presence unless you want one.
Find free resources to help you on The Social Academic blog, podcast, and YouTube channel. You’ve got this (whenever you’re ready)! 🌟
My professor clients can do their own LinkedIn profile, for sure. They just don’t have the time. They’re not job searching. They want a stronger online presence. They’re busy academics who want to feel better connected with people in their field and reach people their research/teaching/leadership supports. They need to focus on their academic priorities and their personal ones, like their family.
You don’t have to do it yourself if you don’t want to. I’ll build your academic LinkedIn profile for you on your VIP Day. We’ll have a planning meeting to talk about your CV, review your existing profile, and chat about your goals. Then, on your VIP Day your LinkedIn profile will be fully done-for-you. After, we’ll meet on Zoom for your Review and Training Meeting, make any needed changes in real time. We’ll build your capacity and practice using LinkedIn for your specific needs. What works for one professor may not be a good fit for you, so we’ll talk about solutions personalized for your life/goals.
Who do I typically work with on the LinkedIn VIP Days service? You may want a done-for-you profile if you just don’t have the time to do it yourself (or you don’t want to). My LinkedIn profile clients have been
Early career researchers, we may create a greater impact for your academic life by partnering on done for you bio writing instead. Not that I wouldn’t be happy to do your LinkedIn profile for you. Just know that you don’t need to work with me for a great LinkedIn profile. I promise you can do this yourself if you want to.
If you’re like, “actually I don’t got this.” Or, “I know I’m not gonna do this on my own.” That’s okay. I’m Jennifer van Alstyne. I’ve been helping professors feel confident when showing up online since 2018 through personal websites and social media. I’m here to help you too.
Let’s chat on a no pressure Zoom call about your LinkedIn VIP Day for a done-for-you profile. Or, a 1 hour LinkedIn consultation with me. Schedule a time on my online calendar.
Last week, the Department of Education’s Office for Civil Rights published a “Dear Colleague Letter” describing educational institutions’ obligations under federal anti-discrimination law and explaining how OCR will interpret Title VI and other legal authorities.
Since FIRE is, at its core, an organization dedicated to free expression, we reviewed OCR’s letter through that lens. In this blog entry, we offer recommendations to OCR to ensure that it does not unlawfully censor educational institutions or pressure them to censor their students and faculty, and we ask for additional clarification of the letter. We also offer recommendations to colleges and universities to prevent overreactions to the DCL and to ensure they continue to protect student and faculty free speech rights.
Title VI prohibits educational institutions receiving federal funding from discriminating against individuals on the basis of race, color, or national origin. In Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC, the Supreme Court of the United States struck down racial preferences in college admissions for violating the Equal Protection Clause of the Fourteenth Amendment and Title VI of Civil Rights Act of 1964. In interpreting Title VI, the Equal Protection Clause, and the SSFA decision, OCR’s letter states:
Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law [ . . .] Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.
The letter also advises institutions to:
- Ensure that their policies and actions comply with existing civil rights law;
- Cease all efforts to circumvent prohibitions on the use of race by relying on proxies or other indirect means to accomplish such ends; and
- Cease all reliance on third-party contractors, clearinghouses, or aggregators that are being used by the institutions in an effort to circumvent prohibited uses of race.
The letter warns that “[i]nstitutions that fail to comply with federal civil rights law may, consistent with applicable law, face potential loss of federal funding.”
Irrespective of whether one agrees or disagrees with race-conscious policies, OCR is likely within its authority to prohibit institutions from providing or denying benefits to individuals based on their race. But while FIRE has no institutional position on affirmative action programs, we routinely see government actors use anti-discrimination rationales to censor First Amendment-protected speech.
FIRE has seen a number of states seek to rein in DEI-related administrative offices at their state educational institutions. We’ve told those legislatures repeatedly that, while they have significant authority to manage nonacademic bureaucracies at their public higher education institutions, they cannot restrict which ideas can be taught in the college classroom, including on topics related to “diversity, equity, and inclusion,” or related concepts. They also cannot restrict student organizations from forming around or advocating on behalf of DEI initiatives.
OCR’s new Dear Colleague letter chides educational institutions for “routinely us[ing] race as a factor in admissions, financial aid, hiring, training, and other institutional programming.” [Emphasis added.] It states that over the past few years, schools have “toxically indoctrinated” students, asserting that institutions have been “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” [Emphasis added.]
West Virginia Gov. Patrick Morrisey issued an executive order to eliminate DEI practices in state agencies and organizations that receive state money.
While OCR is free to criticize colleges for overstepping the bounds of the law on DEI-related issues over the past few years, it must be careful when turning that criticism into policy. When a regulatory agency with the authority to cut off all federal funding to institutions cites certain types of “programming” as evidence that institutions could be violating federal anti-discrimination law, it risks chilling speech on those topics. That is especially true when the term “programming” is left undefined in the letter. Private institutions also maintain broad First Amendment rights of their own, and threats to punish them for their own speech about DEI or affirmative action risks violating the free speech rights of those institutions.
To abate any confusion arising from the letter, OCR should provide additional guidance to describe in more detail the types of programming it thinks violates Title VI and other anti-discrimination laws. Does OCR seek to prohibit institutions from hosting outside speakers who espouse disfavored ideas about DEI? Does OCR seek to limit particular classwork or research at institutions? If so, it has strayed beyond the First Amendment’s boundary.
To avoid chilling protected speech, OCR should clarify the distinction between providing benefits or preferences to individuals based on race or other protected characteristics, and pure speech about DEI and affirmative action — and make clear that it is not banning the latter. OCR must also be careful about regulating institutional trainings at private institutions in ways that violate institutional free speech rights.
As FIRE has made clear many times over the course of several administrations, OCR is bound by the First Amendment and cannot order or compel colleges and universities to violate it.
Courts have struck down government attempts to regulate DEI-related trainings offered by private businesses. The U.S. Court of Appeals for the Eleventh Circuit, for example, upheld an injunction blocking Florida’s Stop WOKE Act insofar as it applied to private business trainings, writing that “by limiting its restrictions to a list of ideas designated as offensive, the Act targets speech based on its content. And by barring only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin.”
FIRE hopes OCR will quickly provide institutions with additional clarity about the full scope of its Title VI interpretations.
FIRE is challenging other parts of the Stop WOKE Act that restrict classroom instruction in higher education on First Amendment grounds. After a federal district court issued a preliminary injunction preventing the state from enforcing those sections of the law, our case is now before the Eleventh Circuit.
To the extent OCR is concerned about the lawfulness of certain mandatory training programs, OCR could require state institutions to make public their training materials on DEI-related issues. FIRE’s Intellectual Freedom Protection Act, which prohibits public colleges from requiring mandatory DEI statements — or any other political litmus test — as a condition of hiring or promotion, contains a provision that could be a useful starting point:
Each public institution of higher education in the state shall post and make publicly available all training materials used for students, faculty, and staff, on all matters of nondiscrimination, diversity, equity, inclusion, race, ethnicity, sex, or bias, and all of its policies and guidance on those issues, on its website.
Such a requirement would provide both regulators and the public with a better idea of how institutions train its students about DEI-related topics.
If there is a conflict — real or perceived — between federal guidance and the First Amendment, the First Amendment prevails. For public institutions, this means they cannot violate faculty or student speech or associational rights regardless of federal agency guidance. For private institutions, this means federal guidance cannot unlawfully restrict the institution’s speech or pressure the institution to unlawfully suppress the speech or association of their faculty or students.
Campus administrators nationwide should not over-read this Dear Colleague Letter to justify censoring student or faculty expression. It would be wise to read it in conjunction with President Trump’s Jan. 21 Executive Order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the directive that likely led to this letter and that contains provisions expressly protecting free speech and academic freedom:
(b) This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
(c) This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.
Since the Justice Department has a role in enforcing Title VI alongside that of the Education Department’s OCR, institutions should also note Attorney General Bondi’s memo on “Ending Illegal DEI and DEIA Discrimination and Preferences.” Her memo expressly notes:
This memorandum is intended to encompass programs, initiatives, or policies that discriminate, exclude, or divide individuals based on race or sex. It does not prohibit educational, cultural, or historical observances—such as Black History Month, International Holocaust Remembrance Day, or similar events—that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination.
When read together in the context of these companion documents, the new DCL should provide no justification for institutions to believe they must censor students, student organizations, or faculty, or rush to cancel university-sponsored cultural events or celebrations. Moreover, doing so may well violate the First Amendment at public universities—and again, courts will always give precedence to constitutional guarantees over guidance and regulations. Colleges will, however, need to end any policy or programs that actively separate individuals or provide benefits based on race.
Given the tight timeline for compliance, FIRE hopes OCR will quickly provide institutions with additional clarity about the full scope of its Title VI interpretations. In the meantime, we again remind colleges and universities to honor their constitutional duties or institutional promises to protect the freedom of expression and academic freedom of their students and faculty.
A federal judge extended an emergency restraining order Friday against the National Institutes of Health, temporarily preventing the agency from making massive cuts to indirect research funding.
The restraining order bars NIH from implementing a 15% cap on indirect cost reimbursement and requires the agency to file regular status reports confirming disbursement of funds. U.S. District Judge Angel Kelley, a Biden appointee, is considering a more permanent injunction against NIH’s plan after nearly two hours of oral arguments Friday.
NIH unveiled the new policy earlier in February. Historically, institutions negotiate their own indirect cost reimbursement rates with the agency, with an average of 27% to 28%. The change was met swiftly with multiple lawsuits, including by higher education groups and 22 state attorneys general. The cases were considered together at the hearing Friday.
Several universities have already frozen hiring and taken other budgetary measures amid the NIH funding uncertainty, despite Kelley’s initial pause on the funding cap.
The funding for indirect costs — also known as facilities and administrative, or F&A, costs — covers a wide array of staffing and infrastructure for research activity.
“Indirect costs are the backbone of IHEs [institutions of higher education] research programs and cover everything from utilities to facilities and equipment maintenance to payroll for faculty and staff to compliance programs, hazardous waste disposal, and more,” 22 state attorneys general said in their original request for a temporary restraining order on NIH. “They quite literally keep the lights on.”
Brian Lea, an attorney for NIH, said at Friday’s hearing that money saved by cutting and capping F&A funding would be “ploughed into” funding for research costs. However, in a Feb. 7 post from the agency on the social media site X, NIH said the funding cap “will save more than $4B a year effective immediately.”
Asked by Kelley about the post, Lea said that it was “at best a misunderstanding” of NIH’s guidance.
Plaintiffs attorneys argued that the F&A cap violates federal laws and regulations, pointing out that Congress passed an appropriations bill during President Donald Trump’s first term that prohibits modifications to NIH’s indirect cost funding.
Lea maintained that NIH’s guidance was compliant with regulations and statutes and within the “broad discretionary power of the executive branch” to allocate funding.
Attorneys for the plaintiffs further argued that an injunction was necessary to prevent “immediate and irreparable” harm, pointing to numerous universities that have detailed how their research, budgets and infrastructure would suffer from the cap. An official at Yale University, for example, said in court papers that the NIH rate cap could threaten the viability of many of its ongoing clinical trials for medical research.
“It is not hyperbole to say that, absent immediate injunctive relief, Plaintiff States’ IHEs will face catastrophic financial consequences, which could result in layoffs and furloughs, research program closures, financial defaults, and disruptions to clinical trials, potentially jeopardizing people’s lives and health,” the attorneys general said in their motion, filed earlier in February.
Lea questioned whether harms such as funding losses were irreparable, suggesting that they could be undone later through private funding or operational adjustments.
As the case winds on, NIH has laid off more than 1,000 employees, according to press reports.
The Education Department originally asked colleges to submit the gainful employment and financial value transparency data by July 2024, but higher education institutions requested more time given last year’s bumpy rollout of the revamped Free Application for Federal Student Aid.
The Biden administration released final gainful employment and financial value transparency regulations in 2023.
Under the gainful employment rules, career education programs must prove that their graduates earn enough money to pay off their student loans and that at least half of them make more than workers in their state who only have high school diplomas. Programs that fail those tests risk losing their access to Title IV federal financial aid.
Although the financial value transparency regulations don’t threaten federal financial aid, they create new reporting requirements for all colleges. Under the rule, the Education Department will post data collected from institutions about their programs — such as costs and debt burdens — on a consumer-facing website to help students make informed decisions about their college attendance.
The Biden administration extended the deadline for reporting requirements three times. Despite the delays, Education Department officials said late last year that they still expected to produce data in the spring to help students select their colleges.
With its latest announcement, the Trump administration’s Education Department is delaying that timeline also.
“The Department does not plan to produce any FVT/GE metrics prior to the new deadline and will take no enforcement or other punitive actions against institutions who have been unable to complete reporting to date,” it said.
It’s so far unclear how the Trump administration will handle the gainful employment regulations. In President Donald Trump’s first term, then-Education Secretary Betsy DeVos rescinded the Obama-era version of the rules, saying they unfairly targeted the for-profit college sector.
The Education Department is facing at least one lawsuit over the Biden administration’s version of the gainful employment rule. However, a federal judge earlier this month paused legal proceedings for 90 days after the new administration sought more time “to become familiar with and evaluate their position regarding the issues in the case,” according to court documents.
The National Association of Student Financial Aid Administrators — one of the organizations that pushed for a delay — applauded the move to extend the regulatory reporting deadline.
The change “is a sensible and welcome decision that will give financial aid offices much needed breathing room while they navigate unresolved issues in submitting their data and make necessary corrections to ensure the data they submit is accurate,” NASFAA Interim President and CEO Beth Maglione said in a statement last week.
The U.S. Supreme Court on Friday unanimously ruled that reimbursement requests filed with the federal E-rate program, which subsidizes internet access for schools and libraries, qualify as claims under the False Claims Act, allowing a whistleblower suit to proceed against a telecommunications company.
Whistleblower Todd Heath alleged in 2008 that telecommunications provider Wisconsin Bell overcharged schools and libraries by not offering them discounted rates required under the E-rate program and submitting reimbursement requests for higher amounts than E-rate should have paid. The False Claims Act allows civilians to bring lawsuits against companies on behalf of the government when federal money is at stake.
E-rate is administered by the Universal Service Administrative Co. under the direction of the Federal Communications Commission. Wisconsin Bell argued that because the Universal Service Administrative Co. is a private, nonprofit corporation and program money comes from fees collected by service providers, its reimbursement requests didn’t qualify as claims under the False Claims Act.
Under that law, a request for money qualifies as a claim if the government “provides or has provided any portion of the money or property requested or demanded.” Justice Elena Kagan, writing for the court, rejected Wisconsin Bell’s arguments because the government provided part of the funds that schools and libraries applied for.
“In the years in which those requests were made, the Government transferred more than $100 million from the Treasury into the pool of funds used to pay E-Rate subsidies,” Kagan wrote. “That is enough to create a ‘claim’ under the Act, and to allow a suit alleging fraud to go forward.”
Wisconsin Bell’s argument that the $100 million was entirely from fees collected by carriers also overlooked the government’s role in delivering that money to the program, Kagan wrote, stating that the government was not a “passive throughway” for those funds.
The Supreme Court sent Wisconsin Bell, Inc. v. United States, ex rel. Todd Heath back to the 7th U.S. Circuit Court of Appeals for its whistleblower claims to proceed.
The Schools, Health and Libraries Broadband Coalition hailed the ruling as helping to strengthen enforcement measures and safeguard broadband funding.
“This decision is a win for schools and libraries who rely on the E-rate program for essential broadband services,” said John Windhausen, the coalition’s executive director, in a statement. “By clarifying the applicability of the False Claims Act to E-rate reimbursements, the Court helps ensure that schools and libraries are able to obtain prices that are no higher than the rates charged to similarly situated customers. This ruling helps improve the efficiency of the Universal Service Fund and the E-Rate program.”
Attorney Allyson Ho, who represented Wisconsin Bell in the case, did not immediately respond to a request for comment.
The narrow scope of the ruling, however, makes it difficult to forecast how the justices might rule on another pending E-rate matter this term. In a case consolidated from two pre-existing ones — FCC v. Consumers’ Research and Schools, Health and Libraries Broadband Coalition v. Consumers’ Research — the program’s future could be decided as the court determines the constitutionality of the funding mechanism for the FCC’s Universal Service Fund, which is overseen by USAC.
“The court was very clear in its emphasis that it has no opinion on issues regarding the constitutionality of the universal fund and of USAC’s role that it will decide in that upcoming Consumers case,” said Noelle Ellerson Ng, associate executive director of advocacy and governance for AASA, The School Superintendents Association.
Middletown, PA – Phoenix Contact engineers head back into the classroom this week to teach sixth-grade science class at Middletown Area Middle School in Middletown, Pa. The classes are part of Phoenix Contact’s National Engineers Week celebration.
Phoenix Contact has worked with the school every February since 2007. The engineers lead hands-on lessons that make science fun. The goal is to inspire young people to consider careers in science, technology, engineering, and math (STEM).
The lessons include:
“Our engineering team created this outreach program many years ago, and the partnership with Middletown Area School District has stood the test of time,” said Patty Marrero, interim vice president of human relations at Phoenix Contact. “National Engineers Week is a special time for them to share their passion for technology with students. It’s also our chance to thank our engineers for the creativity and innovations that drive our company forward.”
About Phoenix Contact
Phoenix Contact is a global market leader based in Germany. Since 1923, Phoenix Contact has created products to connect, distribute, and control power and data flows. Our products are found in nearly all industrial settings, but we have a strong focus on the energy, infrastructure, process, factory automation, and e-mobility markets. Sustainability and responsibility guide every action we take, and we’re proud to work with our customers to empower a smart and sustainable world for future generations. Our global network includes 22,000 employees in 100+ countries. Phoenix Contact USA has headquarters near Harrisburg, Pa., and employs more than 1,100 people across the U.S.
For more information about Phoenix Contact or its products, visit www.phoenixcontact.com, call technical service at 800-322-3225, or email [email protected].
Federal Trade Commission Chair Andrew Ferguson reached out to followers on X yesterday asking for “public submissions from anyone who has been a victim of tech censorship (banning, demonetization, shadow banning, etc.), from employees of tech platforms.” His post was accompanied by a press release from the FTC and a forum for comments on their website, both making the same requests.
This outreach is being conducted, according to Ferguson, “to better understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.”
In reality, the chair is angling to label editorial decisions he doesn’t like “unfair or deceptive trade practices.” But consumer protection law is no talisman against the First Amendment, and the FTC has no power here.
The simplified formulation of Ferguson’s argument is this: If social media platforms are not adhering to their content policies, or “consistent” (whatever that means) in their enforcement, they are engaging in “false advertising” that harms consumers.
Calling something censorship doesn’t make it so, and framing content moderation as “unfair or deceptive trade practices” does not magically sidestep the First Amendment.
Now, it is true that the FTC can generally act against deceptive marketing. That’s because pure commercial speech — that is, speech which does no more than propose a commercial transaction — possesses “a lesser protection” under the First Amendment than other forms of protected speech. And commercial speech that is false or misleading receives no First Amendment protection at all. But when speech — even in a commercial context — expresses opinions about social policy, government power over that speech gives way to the First Amendment.
Content policies and moderation decisions made by private social media platforms are inherently subjective editorial judgments. In the vast majority of cases, they convey opinions on social policy as well as what expression they find desirable in their communities. Attempts to control or punish those editorial judgments violate the First Amendment.
The Supreme Court recently made clear that these subjective decisions enjoy broad First Amendment protection. In Moody v. NetChoice, the Court rebuffed direct attempts by Texas and Florida to regulate content moderation decisions to remediate allegedly “biased” enforcement of platform rules:
The interest Texas asserts is in changing the balance of speech on the major platforms’ feeds, so that messages now excluded will be included. To describe that interest, the State borrows language from this Court’s First Amendment cases, maintaining that it is preventing “viewpoint discrimination.” Brief for Texas 19; see supra, at 26–27. But the Court uses that language to say what governments cannot do: They cannot prohibit private actors from expressing certain views. When Texas uses that language, it is to say what private actors cannot do: They cannot decide for themselves what views to convey. The innocent-sounding phrase does not redeem the prohibited goal. The reason Texas is regulating the content-moderation policies that the major platforms use for their feeds is to change the speech that will be displayed there. Texas does not like the way those platforms are selecting and moderating content, and wants them to create a different expressive product, communicating different values and priorities. But under the First Amendment, that is a preference Texas may not impose.
This is no less true when the government attempts to regulate through the backdoor of “consumer protection.”
To illustrate the problem: Imagine a claim that platforms are engaging in unfair trade practices by removing some “hate speech,” but not speech that aligns with a certain view. What constitutes “hate speech” is entirely subjective. For the FTC to assess whether a “hate speech” policy has been applied “consistently” (or at all), they would have to supplant the platform’s subjective judgment with the government’s own “official” definition of “hate speech” — which, as you can probably already guess, will likely not be the same as anyone else’s.
And this illustration is not the product of wild imagination. In fact, FIRE is litigating this very question before the U.S. Court of Appeals for the Second Circuit right now. In Volokh v. James, FIRE is challenging a New York law requiring social media platforms to develop and publish policies for responding to “hateful conduct” and to provide a mechanism for users to complain about the same. Our motion for a preliminary injunction, which the district court granted, argued that the First Amendment prohibits the government from substituting its judgments about what expression should be permitted for a platform’s own:
Labeling speech as “hateful” requires an inherently subjective judgment, as does determining whether speech serves to “vilify, humiliate, or incite violence.” The Online Hate Speech Act’s definition is inescapably subjective—one site’s reasoned criticism is another’s “vilification”; one site’s parody is another’s “humiliation”—and New York cannot compel social media networks to adopt it. . . . The definition of “hateful,” and the understanding of what speech is “vilifying,” “humiliating,” or “incites violence,” will vary from person to person . . .
The First Amendment empowers citizens to make these value judgments themselves, because speech that some might consider “hateful” appears in a wide variety of comedy, art, journalism, historical documentation, and commentary on matters of public concern.
Ferguson and the FTC’s actions are particularly egregious given the fact that it has been made perfectly — and repeatedly — clear in the past that these kinds of editorial decisions are outside of their authority.
Today, the Foundation for Individual Rights and Expression sued New York Attorney General Letitia James, challenging a new state law that forces websites and apps to address online speech that someone, somewhere finds humiliating or vilifying.
In 2004, the political advocacy groups MoveOn and Common Cause asked the FTC to act against Fox News’ use of the “Fair and Balanced” slogan, arguing that it was false and misleading. Then-FTC Chair Tim Muris appropriately replied, “There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.”
In 2020, the nonprofit advocacy group Prager University argued in a lawsuit that YouTube violated its free speech rights by restricting access to some of its videos and limiting its advertising. They claimed that as a result, the platform’s statements that “everyone deserves to have a voice” and “people should be able to speak freely” constituted deceptive marketing. However, the U.S. Court of Appeals for the Ninth Circuit rejected this claim, holding that the platform’s statements are “impervious to being quantifiable” and, as a result, were non-actionable.
The bottom line is this: Calling something censorship doesn’t make it so, and framing content moderation as “unfair or deceptive trade practices” does not magically sidestep the First Amendment. And as always, beware — authority claimed while one is in power will still exist when one is not.