Mushtaq Gunja: Hello everybody, and welcome to dotEDU, the public policy podcast from the American Council on Education. I am Mushtaq Gunja, along with my co-hosts, Sarah Spreitzer, Jon Fansmith. Sarah, Jon, how are you?
Sarah Spreitzer: I'm good. I am, as usual, off doing the work of good higher education lobbyists. I'm sitting at the Texas A&M DC office, which is very, very nice, for a meeting with the National Science Foundation, where we're discussing research security.
Jon Fansmith: Are you supposed to reveal that on an open webinar, Sarah? Isn't there some sort of-
Sarah Spreitzer: No, it's not a classified meeting.
Mushtaq Gunja: Jon, long weekend. How was it?
Jon Fansmith: I mean, my weekend-
Sarah Spreitzer: Yeah, let's get to Jon's relaxation. Yeah. While-
Jon Fansmith: I was very relaxed.
Sarah Spreitzer: ... I'm actually working.
Jon Fansmith: My daughters were both away for the entire weekend, so my wife and I got to enjoy a long weekend kid-free, so that was pretty nice.
Mushtaq Gunja: My daughter went to go visit my son in college, so we two were alone. It was both relaxing and very, very sad. And also, I got to watch the Dodgers go down to nothing, and I realized that the reason for that was I wasn't wearing-
Sarah Spreitzer: Wow, that is quite the reveal, Mushtaq.
Mushtaq Gunja: ... enough Dodgers swag. I know, Sarah. So for those of you who are listening to the podcast on audio, I have my Dodgers Ohtani jersey on, and I'm wearing it as a hair shirt. I did not wear enough Dodgers gear over the weekend. So this is going to turn everything around. Sarah, I know that you are going to be joining me in rooting for the Dodgers. Thank you very much.
Sarah Spreitzer: Yeah, for the Dodgers. Where are they from? Brooklyn?
Mushtaq Gunja: Sarah, you're supposed to say.
Jon Fansmith: Originally.
Mushtaq Gunja: ... no, they're playing the Milwaukee Brewers, and you're going to be rooting for your Midwest roots, but I was trying to tee you up to-
Sarah Spreitzer: Oh no, we don't like Wisconsin. I'm from Illinois.
Mushtaq Gunja: Yes, yes, of course.
Sarah Spreitzer: So I can root for the Dodgers.
Mushtaq Gunja: Friends, during today's episode, we're going to start with a few recent developments. We're going to talk a little immigration. We're going to talk about the latest appropriations with this pocket rescission package, but we're going to spend most of our episode focused on some of the legal challenges in the higher ed policy sphere. We've been getting so many questions from you loyal listeners about what is happening in the legal sphere. So we though we'd just do 30 minutes trying to dive into all of that a little bit.
Before we kick things off, wanted to highlight two events that are on the horizon. First, on November 10th, ACE and the Education Department are partnering for a webinar on complying with financial value transparency reporting requirements. It's open to all institutions, opportunity to learn about the requirements directly from Department of Ed officials who are responsible for the collection and evaluation of this information. I think the link to register is going to be in the chat. Oh, thank you, Arwen, for putting it right in the chat. And it's also on our website events page.
And then second, registration for the ACE Experience 2027, our annual meeting, is open, but early bird rates end tomorrow. So if you were just waiting, you knew you were coming, but you hadn't yet registered, go do it now. We'll be doing a live episode, I think-
Jon Fansmith: Not right now.
Mushtaq Gunja: Well, no, not right now.
Jon Fansmith: Yeah.
Mushtaq Gunja: Actually, go do it now, and then come back. We'll be doing a live episode at the conference again. We're looking forward to seeing you all there.
Okay, friends, let's jump in. Let's do rescissions first, then international, if that's okay. We're in a new federal fiscal year with the end of FY26. The Trump administration announced a pocket rescissions package. So of course this is funding that was appropriated by Congress, but the Trump administration hasn't spent it or didn't spend it, didn't want to spend it by the end of the fiscal year. And they sent that notice of the dollars that they weren't going to spend over to Congress. The GAO has announced that this sort of move is not legal. AACE sent a letter to congressional leadership asking them to act on the package.
Now, if I'm reading this correctly, California and some six states have sued. They sued on September 30th on this matter of the dollars not getting allocated. Jon, Sarah, where are we? First of all, let me ask it this way. What impact does this have on higher ed? Which higher ed dollars were caught up in this rescissions package?
Sarah Spreitzer: Yeah, for higher ed, mostly we were very concerned with the rescission on the Title VI international programs. Those are grants that go to do language studies and to do area studies at our institutions. And the weird thing, Mushtaq, is that for these Title VI programs, they were part of the inter-agency agreement. They were in the process of being moved to the US Department of State. They had put in whole new priorities, and rewritten the grant requests so that they weren't even called ... So the National Resource Centers got renamed to CANN, which were Centers for Areas of National Need, and the FLAS grants were renamed to something else different. They took on a much more state-specific focus where you had to have a state group write, like your governor or your state board of higher education had to write a letter supporting your application. There was only a three-week competition period, and we were all waiting to see who was going to be announced as being awarded these grants.
And then the next thing you know is they're rescinding the money. And I would also point out that the rescission was announced on the Friday before the end of the fiscal year. The House was out of session, so really there was nothing that Congress could do to push back on this pocket rescission. Usually the rescissions are asked in a earlier time period. So yeah, I would say, one, the fact that they'd actually gone through this grant competition, that they had announced reprioritization of the funding, that we were waiting for the grants to be announced, and then suddenly the funds are rescinded. It's very strange.
Jon Fansmith: Yeah, I mean, I would say-
Sarah Spreitzer: Jon's not surprised, though.
Jon Fansmith: No, I mean, it's not strange. It's very intentional. This is why the GAO said it was illegal. The rescission process exists, and has existed since after Nixon, to basically stop the administration from refusing to spend money on political grounds. And so there's a process through most of the year where you can ask Congress to approve rescissions, and Congress gets to make the decision, "We sent you the money, but fine, priorities have changed, new needs, whatever. We can rescind that money."
The pocket rescission process has always been the last 45 days of the fiscal year, and it's always had a very unclear intent of look, problems with grant funding, or there weren't enough eligible grant recipients, or needs have changed, so there's been less need for funding in a program to go out, and we have money left over. It's a pocket rescission. Essentially, we're putting back to the treasury the things we couldn't get to. And it's not meant to be any way, really, a policy issue.
What we saw, as Sarah's pointing out, making complete wholesale changes to a grant program and then not funding it at all. It wasn't some grants were awarded and the remainder is being rescinded. They're essentially saying, "We're eliminating a program entirely," against statutory authority, against Congress's intent, by simply refusing to fund it, then clawing the money back at the end.
It's not how the process is supposed to work. It is, as GAO has said, it's illegal. It's an abuse of the process. It's also pretty clear that they waited until after at least one of the houses was out. They're not coming back to vote on this while we're in election season. So functionally, we're going to enter the fiscal year with this as a fait accompli by the administration. I wasn't dismissing what you were saying, Sarah, but to me, this was a very clear pattern of actions by the administration. They knew [inaudible 00:08:55]-
Sarah Spreitzer: Yeah, it was definitely much more blatant. And the Title VI programs, they'd asked in the last two budget requests for them to be defunded. Congress disagreed with them, put the money in there, then they were forced to compete the grants. They reprioritized all the things in the grants, rewrote them. So I don't know, I was a bit surprised that that was what they went after. I will also say, Jon, there are agencies like the National Science Foundation that haven't spent out all of their money, and those were not included in the rescissions package. So there's a lot of weird things going on, I would say, with how the administration is spending out money. And I think Congress should be very concerned with this, because they're supposed to hold the power of the purse.
Jon Fansmith: And I'll just note two things. I know Vanessa mentioned in the comments the HEP-CAMP lawsuit. There's lawsuits in a number of different areas on this, and that's probably the likeliest path for some of these funding, essentially funding cuts done through rescissions to be restored.
The other thing about this, and we've seen this efforts in a couple of different areas, but the other provision is that Sarah's point about NSF is a really good one. There's a lot of money that's left unspent that would normally be something you could reasonably assert for a pocket rescission. What we tend to hear is that it's not so much that that money's going to go through the rescissions process. It's going to be reallocated to other administration priorities. They won't spend it the way Congress wants them to spend it, but it doesn't necessarily mean they won't spend it. They're just going to reallocate to areas that are more priorities for the administration.
Again, very questionable whether that's in line with the statute, but seems to be something that's happening as this fiscal year wrapped up.
Mushtaq Gunja: Well, Vanessa, thank you for putting that in the chat. And for anybody that has questions or comments in the chat, definitely if you have questions, put them in the chat or put them in the Q&A. It's always very helpful. Nate notes in the chat as well, seems to be a little bit of their MO that the administration might do something illegal, and maybe hope that there isn't a remedy. It does seem like this is pretty clearly illegal. GAO has said that this is not correct. It's unconstitutional from a separation of powers point of view. I mean, Congress has power of the purse. They allocate. You can't just move dollars around, especially if they are specifically tied to a particular provision.
Then the question really just becomes one of remedy. What happens now that the fiscal year is over? And it seems like the suits are hoping to allege that they might be able to claw that money back and have the dollars actually be spent, even if it's past the fiscal year. Jon, Sarah, is that possible, and is there precedent at all for that happening?
Sarah Spreitzer: I don't know if there's precedent, but I do think one of the suits actually received an injunction and that the money was going to keep flowing, but it was for a specific program. Yeah, so I think it's possible. I mean, for Title VI, those grants are just sitting there. If a court finds in their favor, I would assume that they could award those grants then.
Jon Fansmith: Yeah, I mean, there's two remedies, right? The first is the courts, and I think the one Sarah's referring to, there was a housing group for housing subsidies. I'm not an expert in this, but where the funds, because of court action, are continuing to be allocated.
The other remedy, of course, is that Congress could do something about it. The immediate thing would be Congress could move to act. Whether the administration would vote to support action by the Congress, unlikely. The other thing is Congress could appropriate more money this fiscal year to make whole the programs that were defunded. The problem, of course, is that there's an annual cap on how much discretionary money can go out. If you are paying twice for a program that the money was allocated and returned to the treasury last year, it's not like you get it back again, so you can just reallocate it. You're taking it against those caps in other areas. It becomes a really hard thing for appropriators to find and restore that money, make programs whole.
So it's a real challenge. And again, the administration knows this, too. There's some boundary-pushing here, that they know that the limits even of the remedies, frankly, are probably too much to overcome their action.
Mushtaq Gunja: Well, it seemed like the Senate was unhappy, or at least Susan Collins was unhappy with some of these moves. So I mean, it will be cleanest if Congress moves, because it's actually very difficult for the judiciary to order the executive to be able to spend the dollars that Congress has allocated. It would just be cleaner if Congress sort of re-moved here, but let's see what ends up happening. Let me move us over to immigration. Sarah, it seems like there was news on optional practical training, OPT, last week. What happened?
Sarah Spreitzer: Yeah, we had been waiting to see this proposed rule, which we knew was coming, and the administration has proposed to raise a fee on optional practical training, which is the period of time an international student can stay in the United States after they complete their studies to get practical training like on the job work training. It generally is a year, for up to three years. The program was established by George H.W. Bush, and then it was expanded by his son George W. Bush when he was president.
So they're programs that were not established by Congress, established by the executive authority, and they've been very popular with our international students. And most of our competitor countries, like Canada and the UK, have similar programs. This administration, I think taking a page out of what they've already been doing with the H-1B visas, where they're really into this idea of a $100,000 fee, they are proposing a $70,000 fee for the initial application of OPT.
That fee would be paid by the institution of higher education, and that money would go to the Department of Treasury. Usually when there is a fee established by the Department of Homeland Security, like for OPT, the fee, currently there's $520 you have to pay to apply for the work authorization. That $520 goes to offset the cost of the government preparing the application, doing the review, implementing it. This is just a brand new fee that would go straight to the US Department of Treasury for an unspecified program or whatever, almost like a slush fund. So we've never seen anything like this. There's only a 30-day comment period, so I believe comments are due November 9th. ACE will be submitting comments about how problematic this is.
The other interesting thing, Mushtaq, is the justification for it is about fraud in the OPT program, and that they believe this large fee will help root out fraud, because institutions would have to pay it in order to sponsor a student for OPT.
But really, they're going to be setting up this kind of pay to play system where it's going to only be those that can really pay for it, and none of that money would go to enforcement. It is not like the fee that's already established that when you apply for your work authorization, it goes towards enforcement and administrative costs. This would just go to the US Department of Treasury. So totally different. Obviously it's going to do a lot to discourage prospective international students, I think a lot like what happened with curricular practical training, or CPT, where they were seeking to make changes to it. There's litigation right now on the CPT changes. I think we'll likely see litigation on this proposed fee, but they'll have to finalize the rule. And by that time, the messaging to our international students, the harm will already be done.
Mushtaq Gunja: Sarah, once they finalize, when would it be effective?
Sarah Spreitzer: I believe it said it was going to be 60 days after the final rule comes out. So pretty quickly.
Mushtaq Gunja: Maybe this is related, maybe this isn't related. Last week we also saw the Trump administration launch investigations into nine institutions over J-1 visas, and then I think Microsoft over H-1Bs. What's happening there, Jon? What do we need to know? What do we need to be worried about?
Jon Fansmith: Well, I'll actually defer to Sarah. This is Sarah's area of expertise.
Sarah Spreitzer: This is your opening, Jon, to show how much you know about immigration.
Jon Fansmith: I respect and recognize your talents and your experience here, so I'm happy to defer to Sarah.
Sarah Spreitzer: Good to know. So Mushtaq, it's kind of related, but not really, right? J-1s are visas that are ... It's a student visa. It's a non-immigrant visa. They're usually used by graduate students, postdocs, people that are coming to work in our research labs, people that are coming here on postdocs or visiting scholars. It's an exchange visa, so that means that you're not allowed to work beyond the purposes of your visa. There's a time limit attached to it.
Because it's a non-immigrant visa, you can't express interest in settling in the United States. You're going to have to return to your home country and demonstrate that you plan to return to your home country. And Vice President Vance announced these investigations in kind of this Department of Labor umbrella, and the Department of Labor is the one carrying out the investigations, I think not just at Microsoft, but also in the institutions of higher education, because they're alleging that we were using J-1 visas to undercut American graduate students, that somehow we could pay them less than we would American graduate students.
And it's a really complicated issue, because graduate students, when they're offered these positions, there are certain federal rules around it. I had always thought that it applied both to domestic and international students, and definitely something we're going to have to dig into. But at the press conference, the Department of Labor official talked about research security, like the meeting I'm sitting at right now, that somehow we're allowing our technology and our research to be stolen by international students who may be operating as foreign officials taking information from our labs. But from what I've heard, the information they're seeking from the institutions that are under investigation is all payroll information. They're trying to make this economic argument that somehow we're using J-1s to replace US graduate students. And so we'll have to see how it plays out. But again, the damage to our prospective international students who are thinking about coming here to study in the US, that damage is already done. I think prospective students want that certainty and want to know that they're not going to suddenly be put under investigation.
Mushtaq Gunja: Yeah. The rule here doesn't seem to match what they propose to be worried about. If they're worried about security, I mean, the investigation into payrolls here isn't exactly going to do it. If they're worried about fraud, I mean, raising the OPT fee to $100,000, one thing doesn't have anything to do with the other. So this is all very frustrating. I mean, really what they want is fewer international students, right? I mean, this is ultimately-
Sarah Spreitzer: Yes. They want to reduce the total number of international students coming here to the United States. And I think including Microsoft kind of underscores the fact that this is going to have an economic impact on the entire United States economy. Because first of all, those international students are usually full freight paying. They're spending money on housing, transportation, food, clothes. But some of those technology companies and others depend on us creating the best and the brightest workforce that they can hire from. And so they are interconnected in that way, and I think it's going to have a very negative impact across the United States, not just on our institutions of higher education.
Mushtaq Gunja: Sarah, comment period ends in 30 days, you said, or so, we'll be submitting a letter. Anything else you want our listeners to know and/or do?
Sarah Spreitzer: I mean, I think it'll be really important for individual institutions to submit their own comments. I think we will likely share a draft letter beforehand for our institutions that might want to submit their own comments. Making the economic argument, I think, is really important. If you could submit comments along with an employer in your area about the importance of the OPT program, that could also be helpful.
Mushtaq Gunja: Let me move us to sports. Sarah, I think I am going to go-
Sarah Spreitzer: I'll check out for this one.
Mushtaq Gunja: I'll go to Jon for this one. Since our last episode, I think since our last episode, the discussion was happening right around there. The Senate passed the Protect College Sports Act. Jon, walk us through what that bill will do, what its odds are in the House. The Senate has passed, the House has passed its own version of a bill sort of addressing college sports. The Protect College Sports Act goes in a little bit of a different direction. What will it do?
Jon Fansmith: Yes, so it passed the Senate 77 to 22, a rare, strongly bipartisan piece of legislation in this Congress, and it really is very similar to the House version. There's a couple big differences that I'll talk about in a second, but the big thing is what we've heard from Congress for years now, which is the need for a federal intervention in collegiate sports, because we have varying standards within states, and across different court rulings as it relates to NIL deals, the name, image, likeness deals college athletes have, protections that are given to students, the ability of the NCAA to enforce their own rules, and even agreements they've reached as a result of court actions. And so there's just been this chaotic environment around college sports, where, for competitive reasons, for just equity reasons across teams and conferences, there's been a real interest in setting a standard set of rules.
And the Protect College Sports Act does that in a couple different ways. It encapsulates NIL rules. It gives the NCAA antitrust status in terms of enforcing those rules, so they can supersede state laws. There are protections for students around benefits to them in terms of healthcare, both during and after their time as student athletes, other protections around whether their scholarships can be revoked.
There's also new, stricter rules around transfer and eligibility for athletes, so you will have one chance to transfer, aside from certain special circumstances. In general, there's a lot of different elements to this that kind of get back to a more uniform approach to college athletics. It's also important to note that generally this discussion is really about power conferences, revenue-generating sports. It applies across divisions I, II, and III in collegiate athletics. It's relevant to the thousands of schools that have athletics programs that are not major D-I revenue generating football, basketball programs. There's preservations for smaller sports, Olympic sports, other things in there.
Two big differences that are going to be meaningful when this bill goes back to the House, which has already passed their own version. The first is nothing in the Protect College Sports Act speaks to the status of athletes as employees of the institution. The House Bill explicitly stated that athletes are not employees of the institution. This is really important, because while as we think about the revenue generation, the 50, 60, 80 major conference schools where student athletes are being given relatively generous NIL deals, there's health and other provisions provided, most student athletes in this country are doing this not for an NIL deal, and not with the trappings we tend to think about. If they are treated as employees and all of the relevant things in terms of compensation, and benefits, and insurance, and overtime, all those provisions apply.
The economic consequences of having athletic teams becomes much more significant, especially at schools that don't have those kind of resources, and aren't in it for those reasons. The other piece that is probably going to get a lot of contention as it goes back to the house is the Senate bill includes a cap of 20 members of any one conference, which seems like a lot of members in one conference, given sort of where even the biggest conferences are now. There's a lot of reasons to go into it. We don't have to go into all of them, but the main reason for a cap there is to essentially prevent all of the top schools coalescing in one super conference, that essentially excludes all other conferences from the chance to compete for a national championship, if you follow European soccer, Champions League model from being created, which would have really kind of extraordinary and in some ways anti-competitive power if you had a super conference like that.
Those limits are going to be a little bit of a problem. There's a lot of institutions across this country that would like to, would aspire to join one of those bigger conferences. If caps are in place, there's going to be limitations on them. Every one of those institutions has a member of the House representing them somewhere who's probably going to be receptive to their concerns. So that when it gets back to the House will be another big challenge. The difference between the House and the Senate on those two provisions, likely to be a bit of a rocky road for a uniform bill advancing.
Mushtaq Gunja: And Congress, the House is going to come back when, Jon? When would they take this up?
Jon Fansmith: I think there's a lot of expectation that we'll see it in the lame duck following the election. I think mid-November is when they're scheduled to return. Again, there's still a lot to be resolved before they would be able to pass a version in the House that would be acceptable to Senate. Generally, what we've seen in the past has been whatever the Senate can afford to agree to will cause the House to agree to it, because the divisions are just easier to reconcile in the House.
That said, 77 yay votes in the Senate does give at least the possibility of a little bit of negotiation, that you could afford to peel off a few votes in the Senate. So the House may be looking at this with an appetite of, "We want to get our priorities addressed in some way." So still hard to see. Getting something done sooner is certainly a priority for everyone involved in college athletics, restoring a common sense playbook and an understanding of what the rules are, and that they're uniformly applied. All of that is bipartisanly popular, popular among students and institutions, just defining what those rules will be is where the challenge falls.
Mushtaq Gunja: Sure. One last topic. I'm sorry, go ahead, Sarah.
Sarah Spreitzer: I was just going to say Speaker Jonson did say that he said that he would take it up in the lame duck, and I think that it's the one thing that they'll want to do besides the NDAA before they leave for the year.
Jon Fansmith: And a probes. They have to do something on the probes.
Sarah Spreitzer: They could do another CR, though.
Jon Fansmith: Yeah, they could. But they have to do something.
Sarah Spreitzer: Right.
Mushtaq Gunja: There are one last topic before we get to legal. We saw the Trump administration announced a return to the Title IX rule from Trump's first term. Question mark. Is that right, Sarah? What happened with Title IX over the last couple weeks?
Sarah Spreitzer: Yeah, and Jon can probably speak to this more what happened, but basically they restored the rule that had been put in place by Betsy DeVos in the first Trump administration. And I think most of our institutions were kind of operating under that understanding that there would be a restoration to that rule from the first Trump administration. And so I think on campuses, not as much of a change, but there's no proposed rule. So there's no comment period. It was just kind of they flipped a switch, and now we're back to where we were five years ago or whatever. But Jon, what was the actual thing that they did? Did they have to withdraw the Biden-era rule?
Jon Fansmith: So it was a weird, this is a very procedural kind of issue, and anytime it's Title IX, there's obviously a lot of interest and concern about what's being done. Sarah hit the nail on the head. Functionally, for institutions, the 2020 first-term Trump administration Title IX rules, they were in effect for about, I think it was 26 states because of a court challenge, that when the Biden rules were put into effect, blocked those from taking effect. And then ultimately those rules were fully blocked, and they were never formally rescinded by the Trump administration. But the technical effect of it was really, aside from some short periods of time when the Biden rule had been implemented in some states, most institutions in most states continued to operate under those 2020 rules. This essentially is saying, "Look," stripping the Biden era rules out formally, codifying that the 2020 rules are the ones that are in effect.
There are about four minor changes that were dictated by court decisions in the intervening period around some provisions that courts have either overturned or changed how they should be interpreted. But functionally we're back to 2020, and that is the uniform Title IX regulations overseeing institutional practice.
There was a lot of expectation, I think this was the other thing, a lot of expectation that something would be done around the definition of gender. Sort of surprisingly, given this administration's concerns around the definition of gender, the 2020 rules actually did not create a binary definition of gender, as the current executive order would.
But to Sarah's point also, what it also didn't do, because they're simply recodifying the 2020 rules, they didn't open it up to comment. They didn't open it up to discussion. We submitted comments in 2020 on behalf of a lot of associations, and informed by discussions with hundreds of institutional leaders, and Title IX experts, and survivors groups, and others about our concerns with a lot of the provisions of those Title IX rules. We still have those concerns. This is kind of a missed opportunity on something that's really important. And certainly given the news cycle, we don't have to go too deep into it.
The fact that the climate on campuses, the ways that institutions address this at a minimum is incredibly difficult, but in particular can lead to real harms to students. This is a missed opportunity to try to improve the situation for students and campuses and how they work with federal law. So again, there's a procedural aspect to this, totally understand, makes a lot of sense, but I would say, repeating myself, missed opportunity, in some ways, to get into an issue that needs more time and care and attention.
Sarah Spreitzer: Well, and Jon, we didn't talk about it, but we're basically talking about the application of Title IX when it comes to campus sexual assaults. And I think it is confusing, because this administration has spent so much time talking about Title IX in relation to the definition of gender and in college sports, which they don't touch on in that rule from the first administration. And so it is a big issue, and they have missed an opportunity to have this discussion, but those other things are covered under all of the executive orders and all of the new grant rules that they're putting into place.
Jon Fansmith: Yeah. And we should say, we're saying they didn't address it here. There are other pending rule-makings at the Department of Education on Title IX. They are very likely to try to change the definition of gender to do some other things that we've been expecting. They just haven't done it yet. And this doesn't touch on that.
Mushtaq Gunja: Well, I mean, to the extent this is a missed opportunity, it is October of '26. I mean, it sort of feels like probably we're not going to have, if they haven't done it now, we're probably not going to have that opportunity to have a fulsome discussion around all the campus sexual assault issues with at least this Department of Education before the end of this administration. But I could be wrong about that. I mean, I suppose we can see how the Title IX stuff plays for the rest of the couple of years. What do you think, Jon?
Jon Fansmith: Yeah, I mean, I think there's two things here. I think you're right, first of all, but I think in large part timing is an issue, especially given the other things on the plate. But two, they are functionally operating under the rules that they put in place the first time through. And while there might be changes, I don't know if they are substantive enough, other than these kind of individual pieces you already know they're looking at, to reopen the entire package. And look, it's an incredibly fraught and complicated issue with an enormous amount of public attention, and scrutiny, and controversy. I don't see the upside for them in terms of opening the entire package again.
Mushtaq Gunja: Yeah, that's probably right. Can I turn us to legal for the last 25 minutes that we've got here? Lots of ways to be able to get into this conversation. There's so many lawsuits on so many issues. There's so much sort of swirling, but I'm curious, to the non-lawyers on this call, I'm just curious what your reactions are to where we find ourselves in the legal landscape here and halfway through the Trump administration.
Sarah Spreitzer: I think it's very frustrating, because I think going into the second Trump administration, we assumed that there were going to be a lot of lawsuits. I mean, we saw it in the first Trump administration. There'd be this exercise in pushing executive authority, and then there would be a court case that they'd say, "Nope, that goes too far," and the administration would back off.
What's frustrating now is that they're throwing all government resources into the appeals, or to push it on multiple levels, almost, or in multiple cases. And that part is extremely confusing, and I think also very draining on our institutions, on whoever's supporting the litigation. And just like on the issues that I work on, we had the litigation on indirect cost rates, but then they put it into some of the grant competitions, where take into account the lower indirect cost rate. Or on DEI, you could see a suit against the executive order, but then there's the incorporation of those things into every single grant competition.
So then are you going to be suing every single agency? And what this administration has been doing is they are just constantly appealing. So we have the duration of status case right now that limits international student visas to four years. There was a nationwide injunction. The government is already appealing that. Whereas previously I think they would've pulled back, maybe tried to do something a little differently, do a different proposed rule, try to get litigation passed. This time the strategy, I think both for advocates and for the administration, is almost entirely court-based.
Jon Fansmith: Yeah. So I'm a little bit hesitant to answer, because I feel like this is a trap by you Mushtaq, that you're asking Sarah and I first.
Sarah Spreitzer: I fell for the trap? Oh no.
Jon Fansmith: I mean, the law professor who teaches criminal process and procedure, it does seem like-
Sarah Spreitzer: Whatever. We can just make it up. We don't operate in Mushtaq's world. Okay?
Jon Fansmith: No.
Sarah Spreitzer: Yeah.
Jon Fansmith: No, and look, I'm kind of in the same place as Sarah. I think when I'm talking to people, the sense is, look, they do all these things, and the courts have been sort of the firewall. When these cases go to court, they lose, and you can run down the list of all the different, whether it's in institutions, or sectors, or programs, or whatever else, that they push these policies forward, they take these actions, they get called into court, and they lose.
And I think that's probably accurate, but I also think it's irrelevant. Sarah talked about the resources, the overwhelmingness. If your strategy is to try to get people to make changes to do the things you want them to do, this is enormously successful, because there's a huge imbalance of resources. And even the institutions that will fight back and have the resources to do that, or the organizations like ACE, who's filed a number of suits, for a lot of people, they'll look out there and say, "That's just not a place I can compete." And we've talked too about some of the changes around injunctions and nationwide injunctions, how that's limited as a form of relief to a lot of people. A lot of institutions will pre-comply rather than put the risk forward, because ultimately court may overturn what the administration did, but that might be two or three years down the road. It might be millions of dollars and hundreds of man-hours for whoever is challenging that.
It's not an option that's available to everybody, and the relief granted might not cover you. So is it effective? It's effective, even if it's very technically illegal, too. It doesn't matter whether they think they're going to win or not. And I'll say, we've heard from people within the administration and we've heard from others who have been talking to people with the administration that there's an awareness of that, that they don't have to have the law on their side to accomplish their effect. And certainly, when you multiply that across multiple agencies on multiple issues, rallying a resistance against that, getting a rapid response, it's just harder. It's harder, it's more expensive, it's more demanding, it's difficult to do. It's very difficult to draw those lines and enforce them.
Sarah Spreitzer: But what does the law professor think, Mushtaq?
Mushtaq Gunja: I think when I zoom out, I think that maybe I put the cases and the procedural posture stuff in maybe three buckets. I think when the administration has gone to court, they have mostly lost. I don't think we should take that for granted. I mean, they've racked up a string of losses here that are important. Maybe I'll get into a couple of them in just a second, but that's sort of bucket number one.
Bucket number two, there's some really interesting and weird, I mean, I think we've used the word weird five or six times in the last 35 minutes. It's happening with the court cases, too. Things are in very strange procedural postures, where cases are either dragging on for a while, or the Trump administration's trying to move it from one court to another. They've taken some weird spots in terms of plaintiffs and defendants that just are different. And so that's interesting. It's probably not good, but it's not the worst thing in the world, because on the merits, they're not winning in these court cases.
And then third, one of the things that I think we should all be worried about, we should be watching for, are just new avenues for where fronts can be opened. And so that's where I would put this bucket of this new attack on not-for-profit status. That's just new. I mean, he's been talking about it now. He talked about it in his first term, but he's actually following through with a different sort of approach. So I think that's different.
Look, I don't think we should take for granted, I don't think we should overlook or jump too quickly past the, they're doing things that have been found to be illegal or unconstitutional. This is a big deal. I mean, look, I think a lot of folks that are left of center would say, "The Supreme Court's just going to ratify everything that the Trump administration's doing." That's not what we've seen the courts do. I mean, granted, not many education questions have gotten up to the court yet, but I mean, at the district court level and even at the circuit court level, the Trump administration keeps losing.
There is a case I was talking to, I just put in our Teams channel that I've been really following. It is in the criminal world, Sarah, but it's education-adjacent. So something extraordinary is happening. There's a researcher by the name of, I'm going to get the first name wrong, so forgive me in advance, because it's a Russian name, but I think it's Kseniia Petrova, a Harvard researcher. She works with frog embryos. She's from Russia. She works at Harvard. She went to France. She got some frog embryos, because she's one of the leading researchers in biology, and what this all might mean for humans later. Great.
She goes to Logan, she gets caught up in some customs problems. She didn't fill out her customs forms rights for these embryos. Now, typically, this is just a violation. It's punishable by up to $250. Typically, it's like a $50 fine and you're sort of good to go. But Petrova says that she's at Harvard, and the folks over at DHS hear this, and then they charge her with an immigration with a smuggling violation, a criminal case.
And because she doesn't have full status here, they throw her in detention for four months. She has a hard time getting a lawyer. This is a disaster. Finally, after a few months, the magistrate and district court allows her to be free pending trial, but the Trump administration has filed charges.
Okay, why does this matter? Well, Petrova as a defendant said, "Hey, you're only prosecuting me because you're out to get me." She's making what's called a vindictive and selective prosecution claim, which means you're targeting me, and you're targeting me because I work at Harvard.
Now, this sort of argument never works. I mean, I've been teaching advanced criminal procedure now for 12 years. I've been saying for 12 years, this argument never works. It's the argument that Al Capone made, "They went after me for mail fraud, but really they're just out to get me." It's the argument that President Trump made in his cases in Georgia and then with Jack Smith, "They're just out to get me."
And the courts always say, "No, if you've committed a crime, you've committed a crime." For the first time in, I can't remember exactly when, the magistrate court granted discovery, said, "This claim that Petrova is making is actually viable. And Trump administration, you have to give over documents that explain how you came to this decision. If there's anything called discovery, if there's any documentation that makes it seem like you're targeting her because of her Harvard affiliation, this could be a problem."
Trump administration appealed that first ruling, and last week the district court ruled in favor of Petrova, and has allowed this discovery to go forward. This is extraordinary stuff, partially because forever, when the government says, "Look, we're operating by the book," the courts have given the benefit of the doubt to the administration, definitely in the criminal end, but I think sort of everywhere. And I think what we have seen is the court's patience has really sort of run thin with the idea that we're just going to go along with what I sort of call the presumption of regularity.
We're no longer presuming that things are regular. This is very good news for our institutions, because over and over, it looks like the Trump administration is not acting in a regular manner. And so I think that the courts are acting a little bit more quickly than they sometimes would, not in every case, doesn't make litigation any cheaper. It still makes it really expensive. But I mean, these are big deals here. And so I just want to note some of the wins that our institutions have had. Harvard's had a lot. Now, they've been on the front lines of litigating, but they won, the Trump administration accused them of antisemitism and was threatening all sorts of remedies on that. The district court dismissed that case in August, over our summer break. That was a big deal. The Trump administration lost two different Harvard cases, one around research funding and one around international students, lost in the district court.
Both of those were argued last week in the First Circuit. I wasn't there, but the commentary around the people that were did not seem to appear that the Trump administration's going to fare particularly well in those cases. So I mean, those look good. There's that important University of California case around research funding, the [inaudible 00:47:49] v. Trump, where the administration has lost. They lost at the district court, they lost the Ninth Circuit. They're now appealing to the Supreme Court. We'll see whether the Supreme Court takes it, but just a string of losses here. And I don't know, I mean, I think that this is a decent spot.
Now, I see somebody in the chat saying, "They keep losing, that doesn't stop them from continuing to do it. That's the problem. They just don't care." Yes, I think that's right. But the closer we get to the end of the administration and the closer we get to the midterms, I think the more chances we have, I think, to probably stop some of the things that are not happening in a little bit of a regular fashion.
But I guess let me pause, turn that into a question. I mean, what impact do you see the closer we get to the end of the administration, what do we forecast here? And not to make this an elections podcast, but ... At least not yet. We'll do that soon enough, Sarah, don't worry. What happens if the Dems take over one or two houses of Congress here? What might that do?
Sarah Spreitzer: Can I jump in first, Jon? Because you'll disagree with anything I say. So I think actually, Mushtaq, I think that part of the plan is just to wear everyone down, and to go back to trying to get people to proactively comply. And Harvard is not complying, but there's been plenty of other institutions that have been like, "Okay, I don't want a suit brought against me. I'm going to change even if it's not required, or I'm going to do something different."
I think with Harvard, you were talking about the cases that they've just won on. They were one of the institutions that just got hit with the J-1 subpoena. They were also the ones that were the topic of the White House meeting that got leaked, where President Trump was considering an executive order to allow for political decisions to be made on federal research funding like the NIH, to guarantee that federal funding wasn't going to Harvard, even if they had been decided under the peer review process that the grant would be awarded to them.
So I think there is this very focused way to try to wear everyone down, whether it's either just through, "It's just too much, I can't keep up with all of this," or if it's like, "We're going to bleed you dry, you're not going to have any money to bring it up." And I think about, Mushtaq, I think about the case that just happened with the reporters that were barred from the presidential press pool. They went to court, the court immediately restored their access, and the White House continued to deny them. So then they had to go back to the court to get the judgment restated to the White House, and then they're still being kind of given the runaround when they try and enter the press pool.
But I did have a point here about the midterms. So with the midterms, I think even if you win the Senate and the House, I think you'll see a lot of oversight hearings starting to happen. But what I'm really watching is if there are candidates that were handpicked by the White House, or that were supported, people that the president put up for Senator Cassidy's seat, Senator Tillis, places where he primaried the Republican and it's his candidate going forward, if those candidates lose, I think there will be more Republicans in Congress who say, "I may not want to as closely align myself with what the White House is doing."
The court of public opinion is starting to shift, because this White House more than any other administration, I mean, they've really reshaped the GOP, and they really set the policy for the entire party. Mike Jonson is not just the Speaker of the House, he's the Speaker for the White House, and they march according to the President's tune.
And I think that's what I'm going to be watching post-midterms, is will there be more Republicans willing to break away to speak out and maybe vote on appropriations bills that have stronger language about the power of the purse, or Congress reasserting their ability to make these or language that shores up the merit review or the peer review process? But I [inaudible 00:52:11]-
Jon Fansmith: [inaudible 00:52:11]-
Sarah Spreitzer: ... think Jon's going to disagree completely.
Jon Fansmith: No, I don't disagree. I actually have kind of a different area of emphasis, because I do think there's a really interesting element about the court of public opinion and what's at play here. And the thing that's really striking to me about Mushtaq's synopsis of where we are is twofold. One is in the short term, if you oppose this administration's actions and their policies, this is all to the good. The courts are increasingly skeptical of this administration's arguments being put forward. They can use the administration's own words, in cases like Harvard, to point out that they are pursuing an unreasonable, vindictive, targeted strategy against that institution. That really doesn't support what they might want to do on tax exemption, or international students, or antisemitism. It doesn't matter what Harvard's doing, they're just going to go after Harvard. And we've seen this in the criminal courts area, with even grand jury convictions being questioned by judges, and in some cases thrown out because of improper behavior by assistant US attorneys and US attorneys.
In general, there was just an increasing amount of skepticism as to the value of this administration's assertions in court, and the legal basis that they're acting on. And great, so you want the Trump administration to be checked. That will compound the legal firewalls against what they're doing.
But I think, again, the public opinion in this case, in a lot of cases, we've seen already very conscious efforts to call into question the impartiality, the objectivity, the merits of different institutions in society, higher ed being first and foremost on that list. I don't think it's an accident that we also see now, every time a judge renders a decision in one of these cases, or a panel of judges at the appeals court renders a decision, that the president on social media and supporters of the president talk about, "Well, what do you expect from a Biden appointee?" Or, "Out of control justices checking the will of the people."
I think there's a very deliberate effort to say even our legal system is not really meritorious or objective. And in fact, it's just as partisan as politics is. It's just as partisan as these institutions we're oppositional to. And I do worry that the long-term harm here, both of courts distrusting the government, the government not living up to the standards they've maintained for decades, and courts increasingly being skeptical of them, in comparison with the projection to the public of, "Well, you're only getting the court decisions because we don't have the right judges in place," or it's all this ... Really undermines a lot of the validity of our system in a way that we have kind of held the courts as our firewall through this administration.
And I think that's maybe more at risk now than ever before, because we don't expect the administrative branch to do anything other than be political. We don't expect the legislative branch to do anything other than political. We have been sort of hopeful and reaffirmed that the judiciary has been. The more that gets chipped away at, though, it becomes harder and harder for there to be a uniform set of law that we can all agree is fair.
Mushtaq Gunja: Sure. The irony, of course, is that many of the judges who have been ruling against the Trump administration are Trump appointees, including some at the Supreme Court. Hasn't stopped the attacks on those judges, but I take all those points.
I think maybe there are three things I might say about these next two years from a legal point of view, semi-legal point of view. First is, Jared in the chat notes that if the Democrats win one of the two chambers of Congress, this might help on the standing issue. So standing is this concept that somebody needs to be in the right position to be able to enter as a plaintiff or a defendant in a lawsuit. It's very complicated, it's very boring, but it will help if the Democrats win one of the two branches of Congress for them to be able to intervene, because there have been some strange places where there hasn't been a party that's been able to challenge some of the issues.
That's point number one. I think number two, Harvard's been able to fight because Harvard's got, not unlimited resources, but has a lot of resources, for sure. In Trump one, one of the things that we saw was the law firms jumping in on a pro bono basis on trying to help guard the rule of law, either by suing the Trump administration, just law firms were getting more involved. The Trump administration might have anticipated that might happen in Trump two as well, which is why we had all of these attacks on law firms that came in the first couple of months of the Trump administration.
Sarah Spreitzer: Executive orders. Executive orders against law firms.
Mushtaq Gunja: Absolutely. The closer we get to the end of this administration, the less force any of that I think is going to be able to have. It's very scary to get hit with one of those in January '25. It is much less scary to get hit with one of those in January '28, when there's much less time left. I'm not saying that the law firms are all just going to suddenly 180 back, but they really were in a position to be able to help. And there's a whole army of young lawyers and law students who I think, and this is not a political question, really, but are interested in these topics, and might be interested in helping. So look, I think that there might be more resources on the way. You might not just have to have the litigation dollars for Harvard to be able to get in there.
Those are two positive things. One thing we might want to worry about, though, I mean, if the Democrats were to win one or both branches of Congress, and the executive branch is a little bit more isolated here, I mean, I'm not sure what the Trump administration's going to do. I mean, do they just take a lot of extrajudicial actions knowing that they can't get what they want through the regular process, because Congress isn't going to go along? I mean, will they just double down on trying to get as much done in the last couple of years and hope that it sticks, or hope that they can threaten and bully? I don't know. I mean, I think we'll have to watch out for it, but it may be, in some weird ways, I mean, the losses in the judiciary and maybe some losses in Congress might actually cause them to spin out in some other weird ways. Not to end that point on a little bit of a downer, but I do worry about it. Jon, what do you think?
Jon Fansmith: So two things. One, just very quickly, I want to be really clear too about, we tend to dismiss Harvard's ability to defend themselves, and this is coming at enormous cost for Harvard. And yes, Harvard has resources that set them apart from a lot of institutions, but they have billions of dollars that are being withheld from them. They are enduring the reputational and other harms, challenges. They deserve more credit, I think, than they get. I think people sort of like, "Well, it's easy for them to do so." It is certainly not easy for them to do so, and the stakes for them are enormous. And so I do want to give them the kind of credit that they don't often get.
But to your bigger point, I do think you will see an administration that is going to have a much harder time with a divided Congress, or an oppositional Congress, putting their policies forward.
That said, they have not really shied away from extrajudicial approaches to begin with. And I would think, frankly, given the combative nature of a lot of the people leading some of these agencies or driving policy decisions, The fact that there would be an empowered opposition may, frankly, incentivize more of that kind of behavior. I think they're probably not any less committed to their views, or any less committed to using whatever tools are available to do that. I don't think an electoral loss or loss of power among their party really is going to change that dynamic, other than maybe further incentivizing extrajudicial actions.
Mushtaq Gunja: Well, we are at time. We also lost our co-host. Where did Sarah go?
Jon Fansmith: Sarah, she had enough. I guess I finally made some point she couldn't agree with enough to stay on.
Mushtaq Gunja: Thank you all for joining. Thanks for all you do on campus, and we'll be back in a couple weeks. Congress is out of session. It's supposed to be quiet. Doesn't feel that quiet. So I'm sure we'll have plenty to talk about in a couple weeks. Thank you all. We'll see you soon.