Tag: Higher

  • What the Employment Rights Act 2025 means for higher education

    What the Employment Rights Act 2025 means for higher education

    After months of parliamentary back-and-forth, the Bill finally made it onto the statute books just before Christmas. For universities, the implications are wide-ranging, and the clock is ticking on compliance.

    The Act is the centrepiece of the government’s “Plan to Make Work Pay”, promising a shake-up of employment rights, union access, and labour market enforcement. For the sector, where workforce structures and contractual arrangements are particularly complex, these reforms need to be considered carefully. In this article, we have focused on a rundown of five things universities need to know now.

    Unfair dismissal: the bar just got lower and compensation higher. From 2027, staff will only need six months’ service (down from two years) to claim unfair dismissal and the maximum cap on compensation is going. That means universities could face much bigger payouts if things go wrong. Universities should review probation policies, equip managers to proactively manage performance during probation and avoid extended probation periods, where possible, to reduce the legal risk.

    Zero-hours and casual contracts: new rules, new risk. Think visiting lecturers, exam invigilators, and a lot of student-facing roles. The Act introduces rights to request guaranteed hours, proper notice of shifts, and compensation for cancellations. If you rely heavily on a casual workforce, generally or in certain areas, now’s the time to audit those contracts and review use, although these measures won’t be brought into effect until 2027.

    Trade union access: expect more structured dialogue. With effect from 18 February 2026, the Act lowers the threshold for a valid industrial action ballot and shortens the notice period unions must give before taking action (14 to 10 days). It also extends the mandate for action from 6 to 12 months. This means it will be easier and quicker for unions to secure a mandate for strikes or other industrial action. Universities should expect a more agile approach from unions and be ready to respond to potential disruption with robust contingency planning and clear communication. It may be prudent to review recognition agreements, including the dispute resolution procedures, to seek to mitigate any negative impact.

    Sexual harassment: from October 2026, the Act will require universities to take “all” reasonable steps, not just “reasonable steps”, to prevent sexual harassment of staff, with regulations to follow on what this means in practice. At the same time, employers will become liable for harassment of staff by third parties (such as students, visitors, or contractors) across all protected characteristics, unless they can show they took all reasonable steps to prevent it.

    Disclosures of sexual harassment will be explicitly protected under whistleblowing law, and most confidentiality clauses (NDAs) that seek to prevent staff from raising or disclosing allegations of discrimination or harassment will be void. For universities, these changes raise the bar for prevention, policy, and training and align closely with the Office for Students’ E6 condition of registration, which already requires robust systems to prevent and respond to harassment and sexual misconduct affecting students.

    “Fire and rehire”: also from October 2026, dismissing and re-engaging staff to force through changes to pay, hours, leave, or benefits will be automatically unfair unless the university can prove it’s facing severe financial trouble. If you’re planning a restructure or harmonising terms from October onwards, you’ll also need to follow the revised statutory Code of Practice and have your business case watertight.

    If I were you

    Universities are already navigating a maze of employment models, from permanent academics, fixed-term researchers to casual student workers. These reforms demand a proactive approach to ensure legal compliance but also to maintain staff morale and institutional reputation.

    If you are a university leader, now is a good time to make it part of your new year’s resolution to audit your casual contracts – zero-hours, fixed-term, and casual roles all need additional scrutiny to ensure they meet new legal minimums. It would also be a good time to review probation and dismissal policies and manager compliance, as the shorter qualifying period and uncapped compensation change the risk calculus.

    Most institutions are in communication with their local unions, but now would be a good time to talk to your unions specifically about the changes, as early engagement can help manage expectations and smooth the path to compliance.

    While many in England may have recently reviewed institutional harassment policies as part of recent regulatory changes from the Office for Students, it is important to review sexual harassment policies and ensure managers know what is changing, how they can ensure compliance and to keep an eye out for new regulations.

    As much of the sector faces significant financial challenges, additional restructuring plans may be in play for the upcoming academic year. If this is the case, it is essential you review your plans in light of additional legislation around contract changes, particularly around “fire and rehire”. This is already somewhat of a legal minefield, but the constraints on employers will be far more stringent from October onwards.

    And, if nothing else, you and your colleagues must keep good records. Documentation is your best defence if challenged.

    Ultimately, the Employment Rights Act 2025 isn’t just another HR update and universities must not treat it as one. Instead, it marks a cultural shift towards greater job security and worker voice. For universities, the challenge is to balance compliance with the need for flexibility to meet the complex needs of an institution in an evolving sector. Get ahead of the curve, and you can turn these changes into an opportunity to strengthen staff engagement and institutional resilience.

    Key dates for your diary

    18 February 2026

    • Simplifying industrial action notices and ballot papers
    • Increasing mandate period and reducing required notice period for industrial acton
    • Protections against dismissal and detriment for taking industrial action

    6 April 2026

    • Whistleblowing protection for sexual harassment disclosures
    • Collective redundancy protective award increase from 90 days gross pay to 180 days
    • (Expected) Repeal of the 50% threshold for industrial action ballots to revert to simple majority voting

    1 October 2026

    • “All reasonable steps” to prevent sexual harassment and prevent third party harassment
    • Trade union statutory access rights

    1 January 2027

    • Six month qualifying period for unfair dismissal and removal of compensation cap

    During 2027 (exact date to be determined)

    • Zero-hours and casual contract protections (guaranteed hours, notice, compensation)

    Some provisions are subject to further regulations or transitional arrangements. Check the latest government guidance for updates.

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  • Supreme Court Considers Laws Banning Trans Women in Sports

    Supreme Court Considers Laws Banning Trans Women in Sports

    For years, state laws prohibiting transgender girls and women from playing on sports teams matching their gender identity have proliferated, along with legal challenges to these bans.

    But now, the U.S. Supreme Court may settle what’s become a national controversy.

    On Tuesday, the high court considered the legality of the bans in Idaho and West Virginia.

    In more than three hours of oral arguments, the justices and attorneys debated when there should be exceptions allowed to broad legislation that discriminates against specific groups, how the presence or absence of medical testosterone regulation and biological performance advantages affect the legality of these prohibitions, whether sex should be defined as biological sex under Title IX, and what Title IX’s allowance for sex-segregated teams means if transgender women are allowed to play on women’s teams.  

    “You don’t think we should have an operating definition of sex in Title IX?” Chief Justice John Roberts said at one point to an attorney representing a trans child. 

    Lawyers representing the students who have challenged the bans said the cases were about access to athletics for a small number of transgender people, including those who are regulating their testosterone.  Kathleen R. Hartnett, an attorney challenging the Idaho ban, said her client “has suppressed her testosterone for over a year and taken estrogen,” saying the Idaho law “fails heightened scrutiny” as applied to such trans women “who have no sex-based biological advantage as compared to birth sex females.” 

    Twenty-seven states ban trans women from participating at some level of athletics, according to lawyers both defending and arguing against such prohibitions. Repeatedly Tuesday, Justice Brett Kavanaugh asked whether states that don’t have such bans are breaking the law or should be allowed discretion—suggesting he’s considering a ruling affecting more than the restrictions in Idaho and West Virginia.

    Kavanaugh asked whether states without prohibitions are violating Title IX and the Constitution’s Equal Protection Clause, and whether sex under Title IX could reasonably be interpreted to allow different states to define it differently. He said trans participation can harm girls who don’t make the cutoff for teams, but also expressed hesitancy to rule nationally, asking why the court should  “constitutionalize a rule for the whole country while there’s still … uncertainty and debate.” 

    Justice Samuel Alito didn’t ask many questions, but when he did, he homed in on how sex should be defined under Title IX. He asked how the court could determine discrimination based on sex without determining what sex means. He also asked whether female athletes who oppose transgender women on their teams should be considered “deluded” or “bigots.” 

    At one point, Justice Neil Gorsuch said that “I’ve been wondering what’s straightforward after all this discussion.” Regarding whether puberty blockers eliminate all competitive advantage, Gorsuch said there’s a “scientific dispute about the efficacy of some of these treatments.” 

    Almost a year ago, long after West Virginia and Idaho passed their laws, President Trump signed an executive order banning trans women from participating in women’s sports and threatening universities with loss of federal funding if they disobey. The next day, the NCAA announced a policy restricting “competition in women’s sports to student-athletes assigned female at birth only.” 

    The Trump administration has since pressured institutions to bar trans women. In April, for example, the Education Department’s Office for Civil Rights concluded that the University of Pennsylvania violated Title IX by allowing a trans woman to compete on a women’s sports team—presumably referring to Lia Thomas, who last competed on the swim team in 2022, in accord with NCAA policies at that time.

    Idaho and West Virginia

    The court took up two cases Tuesday, Little v. Hecox and West Virginia v. B.P.J. These suits, which center on whether anti–transgender participation laws violate Title IX and the Fourteenth Amendment’s Equal Protection Clause, have been ongoing for years. 

    In 2020, Idaho became the first state to pass a law outright banning trans girls and women from participating in school sports matching their gender identity. Lindsay Hecox is a trans woman who was nevertheless able to participate in women’s club running and club soccer at Boise State University because she sued that same year and a district court blocked enforcement of the law against her.

    In 2024, her lawyers wrote that she tried out for the university’s women’s cross-country and track teams but didn’t make it, “consistently running slower than her cisgender women competitors.” Her attorneys stress that her “circulating testosterone levels are typical of cisgender women.”

    Hecox’s attorneys had opposed the Supreme Court taking up the case, previously writing that it’s “about a four-year-old injunction against the application of [the Idaho law] with respect to one woman, which is allowing her to participate in club running and club soccer.” Then, in September 2025, her lawyers argued the case had become moot, saying Hecox dismissed her claims and “committed not to try out for or participate in any school-sponsored women’s sports covered by” the state law. 

    “In the five years since this case commenced, Ms. Hecox has faced significant challenges that have affected her both personally and academically,” including an illness and her father’s death, her lawyers wrote. They said she’s “come under negative public scrutiny from certain quarters because of this litigation, and she believes that such continued—and likely intensified—attention in the coming school year will distract her from her schoolwork and prevent her from meeting her academic and personal goals.”

    “While playing women’s sports is important to Ms. Hecox, her top priority is graduating from college and living a healthy and safe life,” they wrote. 

    But attorneys defending the Idaho law have argued not to dismiss the case—a position that may allow a national ruling from the high court. 

    Protesters gathered outside the Supreme Court on Tuesday as the justices heard arguments in two cases concerning trans athletes.

    Ryan Quinn | Inside Higher Ed

    On Tuesday, Alan M. Hurst, Idaho’s solicitor general, argued that the case wasn’t moot, saying Hecox’s plans about whether to play sports have changed before and may change again. Justice Sonia Sotomayor challenged this, saying Hurst was asking the court to “force an unwilling plaintiff … to continue prosecuting this case.”  Justice Ketanji Brown Jackson said “it’s a little odd that a defendant would not want a case dismissed.” 

    Hurst argued that Idaho’s law wasn’t about excluding transgender people, saying the Legislature there instead “wanted to keep women’s sports women-only.” He also said testosterone doesn’t reliably suppress performance. 

    “Sports are assigned by sex because sex is what matters in sports,” Hurst said. 

    Justice Amy Coney Barrett asked whether Hurst was arguing to allow separation by biological sex of even 6-year-olds in sports. Hurst replied that even at that age, boys have a small advantage, but co-ed sports could be an option. 

    The West Virginia case was filed by the mother of Becky Pepper-Jackson, then a transgender sixth grader, back in 2021. Judges blocked enforcement of the Mountain State’s law against the student.   

    “In West Virginia’s telling, it passed [its law] to ‘save women’s sports’ by staving off an impending tidal wave of ‘bigger, faster, and stronger males’ from stealing championships, scholarships, and opportunities from female athletes,” the student’s lawyers wrote. “In reality, West Virginia’s law banned exactly one sixth-grade transgender girl from participating on her school’s cross-country and track-and-field teams with her friends.” 

    Her attorneys wrote that the sports she’s participated in are non-contact, and that she “has received puberty-delaying medication and gender-affirming estrogen that allowed her to undergo a hormonal puberty typical of girls, with all the physiological musculoskeletal characteristics of cisgender girls and none of the testosterone-induced characteristics of cisgender boys.” 

    They wrote that she “wants to play sports for the same reasons most kids do: to have fun and make friends as part of a team.” She’s participated in post-season shot put and discus, “where her performance is well within the range of cisgender girls her age,” they wrote.

    Lawyers defending the West Virginia law, though, wrote that “male athletes identifying as female are increasingly competing in women’s sports, erasing the opportunities Title IX ensured.” They wrote that “women and girls have lost places on sports teams, surrendered spots on championship podiums, and suffered injuries competing against bigger, faster, and stronger males.” 

    Michael R. Williams, West Virginia’s solicitor general, said the state’s law “is indifferent to gender identity because sports are indifferent to gender identity,” and said “we don’t have an actual transgender exclusion.” He also argued that Title IX defines sex as biological sex because that was the understanding at the time Congress passed it.

    Barrett suggested West Virginia’s arguments could be used by a state to argue for separate math classrooms if it produced a study saying women’s presence in calculus was holding men back. Gorsuch made similar arguments. 

    Federal Intervention

    In both cases Tuesday, the federal government defended the state laws. Hashim M. Mooppan, the U.S. principal deputy solicitor general, said Title IX regulations “say you can separate based on sex … the circulating testosterone levels are just legally irrelevant under the regulations.” He also said transgender women aren’t “being excluded from participating on the boys team.”  

    During and after the oral arguments, hundreds of proponents for trans athletes and opponents held dueling rallies right next to each other outside the Supreme Court, each with their own sound systems and speakers. Education Secretary Linda McMahon was among those who spoke in favor of the state bans.

    US Secretary of Education Linda McMahon, wearing a coat, speaks into a microphone.

    Education Secretary Linda McMahon speaks outside the US Supreme Court as justices hear arguments in challenges to state bans on transgender athletes in women’s sports.

    Photo by Oliver Contreras / AFP via Getty Images

    In her remarks, McMahon praised a legal organization, Alliance Defending Freedom, that was defending the bans, and touted the Trump administration’s actions to “restore common sense by returning sanity to the sexes.” She also criticized the Biden administration’s regulations that declared that sex-based discrimination, which is barred under Title IX, includes discrimination based on sexual orientation or gender identity. A federal judge vacated those Title IX regulations in early 2025.

    “In just four years, the Biden Administration reversed decades of progress, twisting the law to argue that ‘sex’ is not defined by objective biological reality, but by the subjective notion of ‘gender identity,’’’ she said. (The Title IX regulations took effect in August 2024 but federal courts had already blocked them in dozens of states.) 

    McMahon added that while the Supreme Court deliberates, the administration will continue enforcing Title IX “as it was intended, rooted in biological reality to ensure fairness, safety, and equal access to education programs for women and girls across our nation.”

    “As President Trump has made clear, America is in its Golden Age, one where female students and athletes have equal access to fair and safe competitions and female-only intimate spaces, free from divisive and discriminatory ideologies,” she said.

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  • Carnegie Recognizes Colleges for Community Engagement

    Carnegie Recognizes Colleges for Community Engagement

    The Carnegie Foundation announced on Monday that more than 230 colleges and universities received its Community Engagement classification.

    The designation from the American Council on Education and the Carnegie Foundation for the Advancement of Teaching highlights institutions that have formed and sustained successful community partnerships. Of the 237 institutions recognized in 2026, 48 received the classification for the first time. The group includes157 public colleges and universities, 80 private institutions and 81 minority-serving institutions.

    “We celebrate each of these institutions, particularly their dedication to partnering with their neighbors—fostering civic engagement, building useable knowledge, and catalyzing real world learning experiences for students,” Timothy F.C. Knowles, president of the Carnegie Foundation, said in a news release.

    Some colleges and universities celebrated making it to the list.

    “This recognition means a great deal to the University of Houston, because it reflects who we are, and how we prepare educated, engaged citizens, while showing up for our community every day,” Diane Z. Chase, the university’s senior vice president for academic affairs and provost, said in a statement.

    ACE and Carnegie also shared the news that the University of San Diego, a Catholic institution in California, will house the Community Engagement classification for the next two cycles.

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  • Lessons for Students on Imperialism

    Lessons for Students on Imperialism

    I have spent 12 of my 28 years in higher education working in top business schools—three in graduate admissions and nine as a tenured professor. I especially love teaching and mentoring MBA students, in part because I know that most of them are going to ascend to leadership in corporations, government agencies and other organizations in the future. I want them to leave my classrooms with the practical skills required to solve complex contemporary business problems.

    Importantly, I also want students to enter leadership roles with the right values. Prioritizing profits over everything at all costs is not one of them. I do not teach students to misuse their power to take things that do not belong to them. To be absolutely sure, I have never instructed them to hate or in any way despise America. But I also have not taught them that America is so exceptional that it can, should and must snatch other people’s land and oil just because our elected officials feel entitled to or desire ownership of those things.

    Students in K-12 schools and on college campuses are receiving a different lesson right now from our federal government. Specifically, it is an instructive lesson on imperialism—the act of a powerful nation exerting control over less powerful countries, often leading to the violent seizure of land and other valuable material resources.

    After capturing and arresting Venezuela president Nicolás Maduro and his wife Cilia Flores, U.S. president Donald Trump declared that the U.S. would be “running” the country. In business, a CEO of one company kidnapping and imprisoning the top executive of another, then grabbing that company’s assets and proclaiming oneself the new leader “for years” (as Trump said of the “only time will tell” period of self-appointed U.S. leadership in Venezuela) would be gangster. It seems like a dramatized fictitious saga that students would see in a movie. They are now witnessing it in real life. And they are learning from it.

    Beyond Venezuela, the Trump administration shamelessly has its sights on Greenland. President Trump seems determined to take it. The imperialist lesson for students is that people’s homelands can be bought or forcibly conquered by a greedy superpower. In history courses, many students have learned about this occurring in various parts of the world centuries ago. Others have seen and engaged in critical analyses of it happening more recently in other geographic regions outside of North America, which has resulted in devastating wars and tremendous losses of life. But they have not seen firsthand or read in their courses about the U.S. recently engaging in such selfish demonstrations of imperialism—until now.

    Between them, my two younger brothers have nine children. At this point, all the kids have been two-year-olds. Uncle Shaun would teach his beautiful nieces and nephews the same lesson that Professor Harper would impart to his impressively smart graduate students: You cannot just snatch other people’s stuff because you want it. An adorable two-year-old may not understand or comply with this lesson, but business and government leaders most certainly should. I am not suggesting that educators treat collegians like toddlers. But perhaps we should not take for granted that they understand what imperialism is, how it harms people and why they must resist it when they amass power and someday ascend to leadership.

    Shaun Harper is University Professor and Provost Professor of Education, Business and Public Policy at the University of Southern California, where he holds the Clifford and Betty Allen Chair in Urban Leadership. His most recent book is titled, Let’s Talk About DEI: Productive Disagreements About America’s Most Polarizing Topics.

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  • Data Shows AI “Disconnect” in Higher Ed Workforce

    Data Shows AI “Disconnect” in Higher Ed Workforce

    Photo illustration by Justin Morrison/Inside Higher Ed | hoozone and PhonlamaiPhoto/iStock/Getty Images | skynesher/E+/Getty Images

    New data shows that while 94 percent of higher education workers use AI tools, only 54 percent are aware of their institution’s AI use policies and guidelines. And even when colleges and universities have transparent policies in place, only about half of employees feel confident about using AI tools for work.

    “[That disconnect] could have implications for things like data privacy and security and other data governance issues that protect the institution and [its] data users,” Jenay Robert, senior researcher at Educause and author of “The Impact of AI on Work in Higher Education,” said on a recorded video message about the report. Educause published the findings Monday in partnership with the National Association of College and University Business Officers, the College and University Professional Association for Human Resources and the Association for Institutional Research.

    In the fall, roughly three years after generative artificial intelligence tools went mainstream and some higher education institutions began partnering with tech companies, researchers surveyed 1,960 staff, administrators and faculty across more than 1,800 public and private institutions about AI’s relationship to their work. Ninety-two percent of respondents said their institution has a work-related AI strategy—which includes piloting AI tools, evaluating both opportunities and risks and encouraging use of AI tools. And while the vast majority of respondents (89 percent) said they aren’t required to use AI tools for work, 86 percent said they want to or will continue to use AI tools in the future.

    But the report also reveals concerns about AI’s integration into the campus workplace, and shows that not every worker is on the same page regarding which tools to implement and how.

    For example, 56 percent of respondents reported using AI tools that are not provided by their institutions for work-related tasks. Additionally, 38 percent of executive leaders, 43 percent of managers and directors, 35 percent of technology professionals and 30 percent of cybersecurity and privacy professionals reported that they are not aware of policies designed to guide their work-related use of AI tools.

    “Given that institutional leaders and IT professionals are the two groups of stakeholders most likely to have decision-making authority for work-related AI policies/guidelines, the data suggest that many institutions may simply lack formal policies/guidelines, rather than indicating insufficient communication about policies,” Robert wrote in an email to Inside Higher Ed.

    And even if they are aware of AI use policies, most workers still don’t know whether to fear or embrace AI.

    The majority of respondents (81 percent) expressed at least some enthusiasm about AI, with 33 percent reporting that they were “very enthusiastic/enthusiastic” and 48 percent reporting a mix of “caution and enthusiasm.” Meanwhile, 17 percent said they were “very cautious/cautious” about it.

    The survey yielded a similar breakdown of responses to questions about impressions of institutional leaders’ attitudes toward AI: 38 percent said they thought their leaders were “very enthusiastic/enthusiastic”; 15 percent said they were “very cautious/cautious” about it, and 36 percent said their leaders express a mix of “caution and enthusiasm.”

    But Kevin McClure, chair of the department of educational leadership at the University of North Carolina at Wilmington, told Inside Higher Ed that embrace of AI may be skewed. That’s because only 12 percent of the survey’s respondents were faculty, whereas the rest held staff, management or executive roles.

    “This survey was also sent to institutional researchers and people affiliated with human resources,” he said. “Those people are working in the realm of technology, processing forms, paperwork data analysis and filing reports.”

    And the framing of the report’s questions about workers’ levels of caution and enthusiasm may have contributed to the elevated excitement about AI captured in the report, McClure added.

    So many people said they share a mix of caution and enthusiasm “because that was one of the choices,” he said. “To me, it reads like people are feeling it out—they can see the use cases for AI but also have concerns. That gets washed out by combining it with enthusiasm.”

    Risks and Rewards

    Nonetheless, that mix of caution and enthusiasm stems from the risks and benefits higher education workers associate with AI.

    Sixty-seven percent of respondents identified six or more “urgent” AI-related risks, including an increase in misinformation, the use of data without consent, loss of fundamental skills requiring independent thought, student AI use outpacing faculty and staff AI skills, and job loss. Some of those concerns align with the findings of Inside Higher Ed’s own surveys of provosts and chief technology officers, which found that the majority of both groups believe AI is a moderate or serious risk to academic integrity.

    “Almost more important than the specific risks that people are pointing out is the number of risks that people are pointing out,” Robert, the report’s author, said. “This really validates the feeling that we’re all having about AI when it comes to this feeling of overwhelm that there really are a lot of things to pay attention to.”

    At the same time, 67 percent of respondents to the Educause survey identified five or more AI-related opportunities as “most promising,” including automating repetitive processes, offloading administrative burdens and mundane tasks, and analyzing large datasets.

    “A lot of people want tools that will simplify the [administrative burden] of higher ed. Not a lot of that is going to save a ton of time or money. It’s just going to be less of an annoyance for the average worker,” McClure said. “That suggests that people aren’t looking for something that’s going to transform the workplace; they just want some assistance with the more annoying tasks.”

    And according to the report, most colleges don’t know how efficient those tools are: Just 13 percent of respondents said their institution is measuring the return on investment (ROI) for work-related AI tools.

    “Measuring the ROI of specific technologies is challenging, and this is likely one of the biggest reasons we see this gap between adoption and measurement,” Robert said. “As higher education technology leaders consider longer term investments, ROI is becoming a more pressing issue.”

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  • Faculty Are Often Unprepared to Teach About Race (opinion)

    Faculty Are Often Unprepared to Teach About Race (opinion)

    Faculty teaching about race do so in a moment when public scrutiny of higher education is heightened, federal policies are shifting, and diversity, equity and inclusion (DEI) initiatives are being dismantled. Even as the stakes continue rising, the instructional support for teaching race remains thin. Classroom missteps become fodder for political commentary, investigations and legislative action, not because DEI is failing—but because higher education has not prepared faculty for the instructional demands of this work.

    In recent years, a series of classroom incidents has sparked social media outrage and press coverage questioning whether faculty can responsibly teach about race and racism. This past fall, a federal civil rights complaint filed against Colorado State University objected to how two social-work instructors were teaching about race: The instructors reportedly detailed in a journal article how they treated discomfort as a measure of instructional success, characterizing student dissent as “whitelash” or an attempt to maintain “white emotional comfort.” And, in November, Texas A&M University adopted sweeping new rules restricting professors from advocating for “race or gender ideology, or topics related to sexual orientation or gender identity” after an instructor’s lesson on gender identity drew political scrutiny.

    Similar conflicts, large and small, have surfaced at other institutions where comments, assignments or facilitation missteps around race have escalated into campuswide crises, legislative attention, or national media backlash. For critics of DEI work, the story is a familiar one, each conflict another example of what they believe is a misguided and coercive approach to discussing race in the academy.

    But these cases are not evidence that DEI is failing. They’re evidence that higher education continues to position instructors to teach about race without adequate preparation, support or instructional training. The result is predictable. Classroom conversations break down, students withdraw or react defensively, and faculty fall back on reductive frameworks that flatten complexity instead of deepening understanding. When the inevitable conflict arises, external critics seize on those moments as proof that DEI itself is the problem.

    As someone who has spent more than two decades teaching courses on race and racism, preparing PK-12 educators and school leaders, and facilitating difficult conversations across racial, political and socioeconomic contexts, I recognize many of the dynamics described in recent reports.

    I have seen classrooms fracture when conversations about race are mishandled. I have also seen classrooms strengthen and deepen when race is taught skillfully, developmentally and with transparency about the learning process—not with the goal of making certain students, based on their race, feel uncomfortable.

    Why Higher Ed Keeps Getting This Wrong

    Too often, instructors are left to navigate high-stakes, emotionally charged conversations with little guiding them beyond readings and good intentions. They confuse discomfort with learning or treat identity categories as complete explanations for how students respond. They assume that naming systemic racism is enough to foster insight. They treat emotional reactions as confessions rather than data. And they interpret dissent as avoidance rather than inquiry.

    Teaching about race is not the same thing as talking about race. It is not sufficient to have strong convictions, an antiracist syllabus or a set of readings that challenge dominant narratives. Teaching about race effectively, humanely and rigorously is adaptive work. It requires attention to the meaning-making capacities adults bring to the classroom, the emotional and cognitive demands of confronting unfamiliar histories, and the complex identity threats that discussions of racism can activate.

    Unfortunately, many college instructors are asked to lead these conversations without any formal preparation in adult learning theory, without much practice facilitating difficult dialogues, and without much exposure to exercising racial literacy skills. Graduate programs rarely include coursework on how adults learn, how to hold tension productively, or how to differentiate instruction for learners at different developmental stages. Faculty development programs typically focus on instructional tools, strategies or course design, not the psychological and relational capacities required to teach race well.

    The result is that many faculty default to one of two equally ineffective approaches: avoidance, in which the fear of mistakes or conflict leads instructors to sanitize discussions about race or eliminate them entirely; or overcorrection, in which instructors push students into discomfort prematurely, recast struggle as resistance or treat identity categories as proxies for understanding. Both approaches undermine learning. And both approaches, ironically, feed the narrative that DEI is coercive, dogmatic or intellectually fragile.

    Misinterpreting Discomfort

    A common misstep in teaching about race and racism is treating discomfort as the goal rather than the byproduct of learning. Discomfort emerges when students confront unfamiliar histories or grapple with the implications of structural racism. But causing discomfort without further reflection is not instructive. In fact, adult learning research shows that when learners do not understand why they feel discomfort, or when they interpret it as a personal indictment rather than information, they often shut down, deflect or retreat into defensiveness.

    Barbara Larrivee’s work on reflective teaching practice emphasizes that adults deepen their reflective capacity not when they are emotionally overwhelmed, but when they can connect feelings to meaning. Tyrone Howard is especially clear that reflective practice around race is emotionally demanding and must be scaffolded, particularly for students who have had limited or no prior engagement with racial analysis.

    Deborah Helsing, Annie Howell, Robert Kegan and Lisa Lahey’s research demonstrates that adults grow when they can safely examine their assumptions, not when they are forced into emotional exposure without a supportive structure. Ronald Heifetz, Alexander Grashow, and Martin Linsky’s concept of a “holding environment” underscores the importance of creating a space strong enough to contain tension and flexible enough to meet learners where they are developmentally.

    When instructors lack this grounding, discomfort can be misread as resistance, and resistance can be treated as evidence of fragility without further inquiry. The learning process collapses.

    Identity Is Context, Not Destiny

    Another pitfall revealed in some cases that escalate into public controversy is the assumption that a student’s response can be fully explained by racial or gender identity. While identity informs perspective, it does not predetermine it. H. Richard Milner IV consistently argues that classroom discussions of race must be deliberate, contextual and connected to students’ lived realities, structural inequities and institutional power.

    Treating students as illustrations of demographic categories rather than as complex thinkers with varied histories and meaning-making capacities undermines trust and flattens what should be a nuanced dialogue. It also discourages dissent and the kind of intellectual engagement that we are meant to cultivate. Students deserve classrooms where questions are welcomed, disagreements are examined rather than punished, and identity is treated as a lens, not a verdict.

    The Real Risk: We Are Handing Evidence to DEI’s Critics

    Faculty who teach about race are working in a political climate where the stakes are extraordinarily high. White House executive orders and state laws across the country have restricted what can be taught about race. Public trust in higher education is declining. DEI offices are being dismantled.

    In this landscape, when classrooms fall apart, the consequences extend far beyond a single course. They reinforce public misconceptions about DEI, embolden efforts to roll back equity-focused policies, and weaken institutional commitments to preparing students for democratic citizenship in a multiracial society.

    Conservative media has built a profitable outrage economy from these incidents, some real and some exaggerated. Every time a classroom implodes, the anti-DEI movement grows stronger with a new case affirming a preexisting narrative: DEI is dogma, DEI is coercion, DEI is emotional manipulation, DEI is identity reductionism.

    But these explanations are not the inevitable outcomes of teaching about race; they are the avoidable consequences of poorly designed learning environments and instructors’ unexamined assumptions. They describe the worst of DEI as if it were the whole of DEI. And colleges, by failing to teach race well, continue to hand DEI’s critics the evidence they need.

    Making the Pivot

    Adults do not grow when they are humiliated, cornered or shamed into silence. They grow when instructors make their reasoning visible, invite critique and create structured environments where difficult emotions can be examined rather than weaponized. Students learn when they are challenged in ways that help them make meaning of their experiences, not in ways that reinforce fear or defensiveness.

    Through trial, error and learning alongside colleagues committed to adaptive adult learning, I’ve found that effective teaching about race requires several related commitments:

    Instructional transparency: making our own assumptions, reasoning and uncertainties visible so that students understand the purpose and process of the learning.

    A shared framework for inquiry: establishing norms that distinguish exploration from accusation and help students make sense of emotional responses without weaponizing them.

    Developmentally aligned challenges: recognizing that students arrive with different capacities for complexity and designing learning opportunities that meet them where they are, while nudging them forward.

    Treating dissent as data: understanding pushback not as avoidance, but as information about what needs clarification, probing or more practical contextualization.

    When faculty practice these commitments, difficult conversations are not something to endure—they are opportunities for insight. Discomfort emerges organically rather than being imposed. Identity becomes context, not destiny. And students stay in the work long enough for significant learning to occur.

    If colleges and universities want students to think critically about history, identity, power and inequality, they must invest in preparing faculty for that work. That means faculty development centered on adult learning, racial literacy, adaptive teaching and facilitation of complex intergroup dialogue, not just compliance training or lists of “dos and don’ts.” It means recognizing that teaching about race is sophisticated instructional work, not a box to check.

    Without institutional support from university leaders, faculty will continue to be underprepared to teach subject matter deemed too politically controversial—despite its importance to preparing civic-minded, informed citizens capable of productive dialogue with people who have entirely different viewpoints and life experiences.

    A Call to Higher Education

    The recent controversies at Colorado State, Texas A&M or those yet to be reported should not discourage colleges and universities (or PK-12 schools) from teaching about race or lead them to abandon the faculty committed to doing so responsibly. If this moment helps us move toward a more rigorous, developmental and humane approach to teaching about race and racism, it will have done something important. It could challenge us to teach race far better than many of us do.

    John Pascarella is a professor of clinical education at the University of Southern California’s Rossier School of Education and chief academic officer of the USC Race and Equity Center.

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  • Censorship Arrives on Campus

    Censorship Arrives on Campus

    It took 50 years for the secret transcripts of the McCarthy hearings to be released. Within these relics of the Red Scares, you can read all manner of hostile interactions, with people doing their level best to protect their careers and their futures (with some also explicitly fighting for the principles of freedom of speech and expression).

    In one hearing, Langston Hughes testified that his political interests, such as they were, sprang from trying to understand how he “can adjust to this whole problem of helping to build America when sometimes [he] cannot even get into a school or a lecture or a concert or in the south go to the library and get a book out.” That answer, grounded in the betterment of the United States, didn’t matter to his interrogators. Roy Cohn, an attorney working for Senator Joseph McCarthy, continued berating the poet using out-of-context snippets of his work while appearing to advocate for federally funded libraries removing it. This mistreatment was, unfortunately, not a rarity.

    The Red Scares were one of the most repressive periods of the 20th century, and yet we are seeing similar efforts to stifle free speech and punish political dissent in higher education today. As a professor who studies higher education policy, I want to better understand policymakers’ focus on resegregating the country, student protests, and why many key figures in higher education stay silent when political attacks target marginalized groups, especially trans scholars and scholars of color.

    That journey motivates this column, “Echoes in the Quad.” Here, I’ll explore what tethers our current higher education policy realities to past moments in history, leading to potential lessons on crafting an American higher education system that thrives within a multiracial democracy.

    I’ll begin with a three-part series on the Red Scares when, throughout the decades surrounding the World Wars, federal and state governments investigated thousands of people, including more than 100 academics, over their supposed links to the Communist Party. These investigations, or the threats of them, led to thousands of people losing their jobs and their friends and, in some cases, even taking their own lives. Throughout this crucible, most of academia, and the country, went along with or actively encouraged the purges and ostracization of “undesirables.”

    In the 1950s, McCarthyism succeeded because of a two-part system of repression. In No Ivory Tower: McCarthyism and the Universities, Ellen W. Schrecker notes that the crackdown first required the federal government to identify “suspected Communists” and then higher education institutions to investigate and fire them. This targeting in tandem gives the game away. The attacks and firings were never about scholars’ fealty to Communism (which should have been protected under the U.S. Constitution, as later Supreme Courts ruled several times). Instead, they were about the expulsion of leftist ideals around worker rights, racial integration and more.

    As several characters in the classic 1990s movie Clue proclaim, when it came to the Red Scares, “Communism was simply a red herring.” Charisse Burden-Stelly, in her 2023 book Black Scare/Red Scare, skillfully outlines how Blackness, particularly Black radicalism and the fight for racial justice, became synonymous with Communism and the dreaded moniker of being “un-American.” This scapegoating strategy meant that faculty members could be fired for being a current or former member of the Communist Party or for such transgressions as advocating as a member of a labor union, fighting for racial integration, or being Black or homosexual.

    In No Ivory Tower, Schrecker demonstrates how elite members of higher education either actively worked to ensure that universities censored suspected political dissidents or neglected calls for help from targeted people. At the same time, a substantial share of rank-and-file members of academia allowed their colleagues to be harassed and ostracized, while helping to maintain a version of an academic blacklist—ensuring that people who had even the faintest taint of suspicion would not be hired at their institutions.

    These actions, whether driven by cowardice, complicity or some combination of the two, led to a world where professors and students targeted by the federal government began making plans for their eventual firing or, in some tragic instances, their own death.

    And so, the U.S. House of Representatives devoting precious time to passing bills “denouncing the horrors of socialism,” colleges firing or suspending faculty and staff because of their speech, and students getting grabbed off the street for writing opinion pieces seem like relics of the past. Yet these events are part of our current, dangerous escalation in repression. Auburn University, High Point University, and Texas A&M have all introduced tools or forms that assess whether courses violate vague policies meant to curtail discussions of concepts like racial integration. Just last week we learned that Texas A&M has flagged at least 200 courses& in its review for offenses as grave as assigning students to read Plato. In the wake of Charlie Kirk’s death, universities investigated, and often ultimately suspended or fired, at least 50 members of the faculty and staff—sometimes simply for the transgression of quoting his own past statements. State policymakers frequently played a role in targeting and threatening either these people directly or the funding for universities that employed them.

    This is not solely a “red state” or “southern” problem. At the same time that University of Texas at Austin was firing staff members to satisfy ideological aims, Muhlenberg College fired a faculty member in a manner that led the AAUP to declare that the institution had “severely impaired the climate for academic freedom.” Brooklyn College, part of the City University of New York (CUNY) system, fired four contingent faculty members, allegedly& due to their advocacy for Palestine. (Perhaps an homage to the 1940s Rapp-Coudert Committee, which led to the firing of dozens of faculty and staff at the City College of New York, also part of CUNY.) While some are quick to note Indiana University’s censorship of speech in the student newspaper, the same flavor of tactics has been used against student journalists at Columbia University, Dartmouth University, and Stanford University. And, who can forget the ignominious list of, at present count, six institutions that have signed agreements with the federal government containing different commitments—large fees, acceptance of recent Executive Orders aimed at reducing medical care and controlling teaching and hiring—all with the goal of curtailing speech and expression on their campuses.

    Most heartrending though, are the lives lost, sacrificed at the altar of authoritarian demagoguery. Middlebury College swimmer Lia Smith, who left the team due to attacks on trans athletes, died by suicide last fall. There is no direct evidence that this was caused by the ever-escalating vitriol hurled at trans people in the United States, but it strains credulity to believe that she was not impacted by this rise in hate, backed by the power of the government, and implemented by blue and red states alike.

    One of the loudest echoes of the Red Scares is perhaps the reality that libraries continue to remove books due to censorship. The federal government interrogated Langston Hughes because the State Department included his work in U.S. libraries abroad. McCarthy’s lieutenants traveled to Europe removing books that they determined to be “subversive” from these libraries. In another hearing, William Mandel, an expert on the Soviet Union forced out of his position at Stanford’s Hoover Institution during the Red Scares, stated, “This is a book-burning! You lack only the tinder to set fire to the books as Hitler did 20 years ago, and I am going to get that across to the American people!”

    The culture of fear created by Senator McCarthy and others served to silence ideas and beliefs that they disagreed with. The future is yet unwritten, but by understanding what political repression looked like then, we can recognize it and figure out how to fight it now. As Mandel noted, once we see censorship for what it is, it’s our responsibility to get that across to the American people.

    The next two columns in this series will focus on the organizations and people that made McCarthyism as effective as it was: the academic elite who worked hand in glove with the rank and file to ensure that, what the government started, higher education would finish.

    (Copies of No Ivory Tower are difficult to find, but several libraries stock it and, if you can’t get access there, here’s a lovely interview with the author.)

    Dominique J. Baker is an associate professor of education and public policy at the University of Delaware. You can follow her on Bluesky at @bakerdphd.bsky.social

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  • Officials in Connecticut Propose New Graduate Student Loan

    Officials in Connecticut Propose New Graduate Student Loan

    Photo illustration by Justin Morrison/Inside Higher Ed | Getty Images | Rawpixel

    After President Donald Trump’s One Big Beautiful Bill Act (OBBBA) overhauled federal student loans, college affordability advocates worried that those changes would severely restrict who has access to higher education—especially graduate programs. Now, lawmakers in Connecticut are taking steps to ensure students in the state can continue to afford those degrees.

    Rep. Gregg Haddad, a Democrat who co-chairs the Connecticut legislature’s Higher Education Committee, announced a plan last week to create a new state-level student loan program to fill in the gap left by the elimination of Grad PLUS loans, a 20-year-old loan program that helped expand graduate education for middle- and low-income students. The program will be open to any student studying at a graduate program in the state.

    Josh Hurlock, deputy director of the Connecticut Higher Education Supplemental Loan Authority (CHESLA), a quasi-public body that administers Connecticut’s state-level student loans, said the organization is hoping to launch the new program in time for students to take out loans for the 2026–2027 academic year.

    “The Grad PLUS program historically has had very little credit check, so it’s been accessible to students of all credit qualities,” Hurlock said. “So, with the program going away … we want to make sure that students and schools have financing options available for their graduate students, and students and schools need to know what’s available sooner rather than later as we approach the fall semester.”

    The program would require $30 million in funding for its first year, based on calculations that students in Connecticut take out between $90 million and $100 million in Grad PLUS loans annually. (Those already receiving the loans will be grandfathered in.) Two-thirds of that would come from a bond that CHESLA will issue, while the remaining $10 million would have to come from state allocations. Haddad said he is hoping the funds can be drawn from a $500 million emergency reserve the state created in November specifically to offset federal cuts.

    Interest rates and borrower fees have not yet been determined, “but we think we can come up with an attractive product and solve this problem for Connecticut students,” Haddad said.

    Eliminating Grad PLUS loans is just one of the restrictions on federal student loans included in the OBBBA. The legislation also placed caps on how much borrowers can take out in federal loans for graduate programs and on Parent PLUS loans for dependent undergraduates. Proponents of the limits argued that uncapped federal loans encouraged universities to increase their tuition fees, creating the student debt crisis. But supporters of federal student loan programs argue they opened the door to graduate education and careers in fields like medicine for students who previously would not have had those opportunities.

    Grad PLUS loans will officially end and the caps for other federal loans will go into effect in July. Administrators at several institutions with a large number of graduate students told Inside Higher Ed that they’re still working to figure out how to close funding gaps for their students.

    Filling in the gap left behind by Grad PLUS loans is especially important because Connecticut, like most U.S. states, struggles with a shortage of workers in certain professions, like nurses and teachers, Haddad said.

    “We have a keen interest in making sure that we have a robust pipeline of people who want to enter those professions,” he said. “And we’d like to remove any roadblocks to having them achieve and complete their degrees so that they can get to work providing the services that people need in Connecticut.”

    Peter Granville, a fellow at the Century Foundation who researches college affordability, said that it’s wise for states to consider how they can support students in the absence of Grad PLUS funding.

    “State leaders know that their economies depend on these students being able to attain degrees in fields like education and nursing,” he said. “States will be worse off if [they] completely depend on private lenders filling gaps that they may or may not be inclined to fill.”

    Haddad said that the proposed loan program has been received extremely well by both the public and his fellow lawmakers, whom he is hopeful will support the proposal once their legislative session begins in February.

    “I was struck when we had our press conference the other day—the room was filled with nurses and social workers, physical therapists and educators from across the state,” he said. “I think it’s an indication that there’s a real problem we need to fix.”

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  • Clemson Settles With Professor Fired for Kirk Comments

    Clemson Settles With Professor Fired for Kirk Comments

    sbrogan/E+/Getty Images

    Clemson University has agreed to rescind the termination of Joshua Bregy, an assistant professor in the department of environmental engineering and earth sciences, nearly four months after dismissing him for resharing a post on his personal Facebook page that criticized the late conservative commentator Charlie Kirk.

    Bregy sued after he was terminated on Sept. 26, claiming that his firing violated his First Amendment rights. As part of the settlement, Bregy will receive pay and benefits “throughout the original term of his employment,” the ACLU of South Carolina, which represented Bregy, said in a news release. In addition, Clemson provost Robert Jones agreed to “provide positive letters of recommendation to potential employers based on Dr. Bregy’s classroom teaching.” For Bregy’s part, he agreed to drop his lawsuit and resign from his position at Clemson effective May 15, 2026. He will not have any teaching, research or other faculty obligations through the spring semester, according to the release.

    Bregy was among the dozens of faculty members targeted by right-wing politicians and online commentators for making or sharing critical posts about Kirk after his death. The post Bregy shared said, in part: “I’ll never advocate for violence in any form, but it sounds to me like karma is sometimes swift and ironic. As Kirk said, ‘play certain games, win certain prizes.’”

    “We were honored to represent Dr. Bregy and to reach an agreement that restores his employment, allows him to continue to pursue research funding, and deters the university from violating the First Amendment rights of its faculty in the future,” Allen Chaney, legal director at the ACLU of South Carolina, said in a statement. “Politicians and university administrators come and go, but years from now we will still be here. So will the U.S. Constitution.”

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  • Researchers May Be Forced to Rely on an Obscure Court

    Researchers May Be Forced to Rely on an Obscure Court

    Several hundred feet from the White House, down a concrete path and across a quiet brick courtyard adorned with historical markers lie the doors to a small courthouse.

    Inside, etched into the stone wall, is a quote from Abraham Lincoln: “It is as much the duty of government to render prompt justice against itself, in favor of citizens, as it is to administer the same, between private individuals.”

    It’s apt for what’s in this building: the Court of Federal Claims, a legal venue where the U.S. government is always the one being sued. The building is now poised to be the site of fights over droves of terminated research grants.

    Although it’s the latest iteration of a court that’s existed since 1855, predating Lincoln’s election, it’s not a well-known institution. It’s not the subject of on-screen, steamy legal dramas. But the U.S. Supreme Court’s preliminary rulings last year have elevated its importance for higher ed.

    A majority of justices say this 16-judge court likely has jurisdiction over lawsuits regarding thousands of National Institutes of Health federal research grants that the Trump administration has tried to terminate, as well as other fights concerning canceled grants. If the Supreme Court sticks by its current thinking in final rulings, the Court of Federal Claims could be handling fights over countless grants that the Trump administration and future higher ed-targeting presidencies may try to cancel in the future.

    One catch: This court doesn’t have the authority to actually restore the grants. It can award money for canceled ones, but experienced lawyers who practice before it disagree on whether it will provide compensation even approaching what the grants were worth—they can be for millions of dollars apiece.

    Attorneys also say that researchers likely won’t have the right in this court to challenge their grant terminations; they’ll have to rely on their universities to sue on their behalf because the institutions are the legal parties to research grants. Overall, it’s generally unclear how a research grant-related case would turn out in this court.

    “This is—I think esoteric is probably an understatement,” said Bob Wagman, president of the Court of Federal Claims Bar Association and a lawyer before the court for 25 years.

    Lobby of the United States Court of Federal Claims building.

    Ryan Quinn/Inside Higher Ed

    ‘A Mess’

    As far as Wagman knows, the court has yet to say what level of monetary damages plaintiffs could win from the court over research grant terminations. He said that’s just one of a number of “threshold” issues judges will have to decide on regarding how these cases will work. 

    “It’s just been sort of an avalanche and people are trying to figure out what makes the most sense,” Wagman said.

    Ted Waters, the managing partner at Feldesman LLP and a George Washington University Law School adjunct professor, said “it’s all a mess because nobody knows what the rules are.”

    He contends that plaintiffs before this court couldn’t win back the full value of their grants but instead only “out-of-pocket termination costs,” such as the expense of giving two weeks’ severance pay to employees a university hired in expectation of receiving the grant. He said Congress didn’t create the Court of Federal Claims and the special appeals court that’s over it to deal with federal grants; it’s meant for contracts, such as when the government purchases items from companies.

    “This is all new stuff, and none of the kinks have been worked out,” said Waters, who’s been working in the federal grants field since 1992.

    Heather Pierce, senior director of science policy for the Association of American Medical Colleges, said thousands of terminated NIH grant cases going to the Court of Federal Claims “would clog the court immediately.” Elizabeth Hecker, a senior counsel with specialty in higher ed for Crowell & Moring LLP, echoed that.

    “There’s gonna be a tremendous backup … and these are gonna take years and years and years to decide,” Hecker said. “Whereas, if you go to federal district court, you can get a preliminary injunction.”

    But Waters doubts there will be a flood of cases. He said there’s little to fight over because researchers can’t get the relief they want from the court.

    The [Supreme] Court grapples with none of these complexities before sending plaintiffs through the labyrinth it has created.”

    Justice Ketanji Brown Jackson

    Anuj Vohra, a partner at Crowell & Moring LLP, who began his career in Washington working for the Justice Department before the court, said “the court does not have equitable powers to reinstate grants, and I think that is, in large part, why the government is trying to move much of this litigation to the court.”

    He said plaintiffs will have to expend resources to win in this court and, while “we don’t know exactly how the Department of Justice is going to defend these grant terminations, … I assume they’re going to argue that the researchers are entitled to something less than the entire amount of the grant.”

    Still, Vohra said he doesn’t think going to the court would be pointless.

    “Grant terminations have not historically been litigated in the Court of Federal Claims, and so the challenges we’re seeing now are kind of charting a new course in terms of damages, theories and entitlement,” he said. “But I certainly don’t think it’s a fool’s errand to come to the court, and I think we’re going to see a lot more litigation over grant terminations this year.”

    Courtyard of the United States Court of Claims building.

    Courtyard of the U.S. Court of Federal Claims building. Lincoln’s secretary of state lived and was almost assassinated at this site.

    Ryan Quinn/Inside Higher Ed

    ‘The Labyrinth’

    Not all the Supreme Court justices thought this was a good idea.

    The conservative majority, absent Chief Justice John Roberts, first mentioned the Court of Federal Claims last year in one line in a roughly two-page preliminary ruling in April.

    “The Tucker Act grants the Court of Federal Claims jurisdiction over suits based on ‘any express or implied contract with the United States,’” the majority wrote, reasoning that canceled Education Department K-12 teacher training grants in that case were contracts.

    There was only one justice, and that’s Amy Coney Barrett, who thought that that was the right outcome.”

    Elizabeth Hecker, senior counsel with Crowell & Moring LLP

    Then, in August, in ongoing litigation over the Trump administration’s termination of thousands of NIH research grants, Justice Amy Coney Barrett was the deciding vote. In a five-page preliminary opinion, she said a regular federal district court “likely lacked jurisdiction to hear challenges to the grant terminations, which belong in the Court of Federal Claims.” In a partial concurrence with Barrett, Justice Neil Gorsuch criticized the lower court judge—who had ruled the grants should be reinstated while the case continued—for not following the conservative majority’s earlier (also preliminary) ruling in the Education Department lawsuit.

    “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them,” Gorsuch wrote. He said that, even though the decision in the Education Department case wasn’t a final judgment, “when this Court issues a decision, it constitutes a precedent that commands respect in lower courts.”

    Justice Ketanji Brown Jackson countered in a 20-page dissent that “the Court of Federal Claims is authorized to award only money damages for contract breaches, not reinstatement of grant funding improperly terminated in violation of federal law.” She defended the district court’s decision.

    “Having struck down unlawful agency action, the District Court ‘also had the authority to grant the complete relief’ that followed,” Jackson wrote, quoting precedent. “Under the rule the Court announces today, however, no court can reinstate the plaintiffs’ grants.” In a footnote, she added that “the Court grapples with none of these complexities before sending plaintiffs through the labyrinth it has created.”

    A plaque inside the United States Court of Claims building.

    A plaque outside the United States Court of Federal Claims building.

    Ryan Quinn/Inside Higher Ed

    Barrett concluded in her August decision that the district court did likely have the right to void the NIH guidance upon which the agency based its terminations, even though it likely didn’t have the right to restore the grants. But four of Barrett’s colleagues said the district court was likely wrong on both issues, while the other four said the district court was likely right on both.

    That meant Barrett was the deciding vote on a split order that allowed universities, researchers and other organizations to challenge the guidance in district court, but said they had to challenge the actual grant terminations in the Court of Federal Claims.

    “There was only one justice, and that’s Amy Coney Barrett, who thought that that was the right outcome,” said Hecker, of Crowell & Moring LLP. She said “it’s a very unusual and seemingly inefficient way to go about doing things.”

    Hecker said one way to avoid this dual-track litigation would be for plaintiffs challenging grant terminations to use constitutional arguments—such as claiming that grant cancellations violate the First Amendment—rather than the Administrative Procedure Act, a law cited in the NIH grants case that invited the counter-argument from the government that the cases belonged in the Court of Federal Claims.

    Waters, of Feldesman LLP, said the ramifications of sending grant cases to the Court of Federal Claims extend far beyond higher ed, to highways, green technology and more.

    “The importance of grant programs—I don’t think people realized until now,” he said, adding that they “touch the whole fabric of American society.”

    Wagman, the president for the court’s bar association, said he thinks that, given the uncertainty of how claims for money before the court will turn out, most people would just prefer their grants be reinstated.

    “But if that’s all you got,” he said, “that’s all you got.”

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