September 24, 2025

The Academic Advisor - Education Law Insights, Issue 7, 2025

Kevin Carr, Stephanie Eaton, Lisa Hawrot, Erin Jones Adams, Jamie Martines, Nicholas Muto

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Welcome to our seventh issue of The Academic Advisor for 2025.

In this edition, we cover the following topics of interest for schools, institutions of higher education, and other education-focused organizations:

The intersection of FOIA, intellectual property rights, and academic integrity;
How Ohio’s new Higher Education Enhancement Act is affecting universities;
New challenges to U.S. Department of Education findings involving school districts, Title IX, and gender-based policies and protocols;
How the U.S. Department of Homeland Security plans to limit foreign students’ stay in the country (with period for public comment ending September 29);
The increase of modular construction for higher education; and
How North Carolina schools are tackling AI.

University Professors are Latest Targets of FOIA Requests

“Citing President Donald Trump’s anti-DEI executive orders from earlier this year, Howell noted in a statement that ‘disclosure of these records will contribute significantly to the public’s understanding of university operations and student-facing programing, particularly considering ongoing public concern regarding institutional compliance with current Executive Orders issued by the President of the United States.’”

Why this is important: The federal Freedom of Information Act, or FOIA, and state right-to-know law equivalents can be important and valuable tools to promote transparency at all levels of government by giving the public access to certain records. Federal and state entities are required, by law, to turn over those records, and those records can be critical oversight tools when it comes to tracking issues with government spending or compliance with safety or health standards, for example. Responding to these requests can be tricky: Federal and state agencies are permitted under federal and state laws to withhold certain sensitive documents or information, and navigating compliance with public records laws requires knowledge of those laws and legal precedents regarding what must be produced.

Responding to public records requests has recently become even more difficult for some public university systems. The University of North Carolina (UNC) system, for example, has found itself the target of sweeping requests by the Oversight Project, a former Heritage Foundation initiative now operating as its own entity, seeking syllabi and other class materials that it argues may not be following anti-diversity, equity, and inclusion executive orders issued by President Trump in early 2025.

Such requests put public university systems and their affiliated institutions in a tough position. While they must respond to open records requests to the extent the law requires, handing over certain materials, including course syllabi, may interfere with intellectual property rights. Complying with these particular requests – which have been submitted, in the case of UNC, with explicit references to the executive orders – could also have an effect (actual or perceived) on academic freedom and integrity.

Failing to adequately respond to open records requests could pull universities into lengthy appeals processes and even litigation. That is why it is important to ensure that responses both comply fully with the production requirements of federal and state open records laws, and ensure that what is being produced protects the privacy, intellectual property, or other rights of the individuals who might be affected by those disclosures. --- Jamie L. Martines

Practical Impacts of Ohio’s New Higher Education Law on Colleges and Universities

Senate Bill 1, the Ohio Higher Education Enhancement Act (HEEA), was signed into law on March 28, 2025, and went into effect June 26, 2025, impacting Ohio’s public universities and colleges. If the public universities and colleges do not abide by the new law, they risk losing state funding.

Some of the provisions of the new law include prohibiting public universities and colleges from taking positions on “controversial beliefs or policies,” which are defined as anything subject to political controversy—including climate change, electoral politics, foreign policy, diversity, equity and inclusion (DEI) programs, immigration policy, marriage, and abortion. The new law removes DEI-based hiring practices. HEEA also removes training, offices, or scholarships based on DEI. It further requires public colleges and universities to eliminate undergraduate academic programs that average fewer than five degrees awarded annually over any three-year period.

As a result of the passage of Senate Bill 1, Ohio University plans to wind down 11 undergraduate programs, merge another 18 programs, and request waivers for seven programs to comply with these thresholds. The University was also going to suspend admission to these programs until receiving approval from the State higher education department. Several of the programs that are ending are expected to have parallel programs that continue. For example, bachelor of arts degrees in chemistry, geological sciences, mathematics and physics are slated to end, but bachelor of science degrees covering these subjects will continue. Students currently enrolled in the affected programs will be about to complete their degrees. The merging programs include those with similar or overlapping degrees, mainly in visual and performing and liberal arts, including instrumental music and geography. For the waivers, Ohio University is advocating that these programs are unique and have had curriculum changes or meet workforce needs.

Similarly, the University of Toledo announced it was suspending admissions to nine programs. The suspended programs will be available as minors. Students in the affected programs will be able to complete their degrees without disruption. The school is also suspending admission to certain graduate level programs and offering others under a different organizational structure. The University’s Program Reallocation and Investment Committee evaluated programs based on criteria such as workforce needs, research activities, profit margin, and engagement with community partners. The school indicated that faculty will continue to teach courses that are part of minors, certificates or concentrations, along with significant components of the school’s core curriculum. As a proactive measure, proposals for seed money are being solicited for investment in new initiatives that have the potential to increase enrollment, student engagement and activity on campus, and improve student success.

Certain questions loom large, such as what uncertainty lies ahead for students who complete degree programs that are ultimately eliminated. Will they find it more difficult to obtain employment post-graduation, and how will these programmatic changes affect faculty and staff? It is still too soon to determine the practical effect of the HEEA. However, what is certain is that the HEEA is changing the educational offerings of universities and colleges in Ohio. --- Lisa M. Hawrot

All-Gender Restroom at Denver’s East High School Violates Title IX, Trump Administration Finds

“The U.S. Department of Education Office for Civil Rights said in a press release that the all-gender restroom places a burden on girls to seek a single-sex restroom elsewhere, ‘thereby denying their right to equal educational facilities and opportunities’ under Title IX.:

Why this is important: On August 28, 2025, the U.S. Department of Education (ED) found that Denver Public Schools (DPS) violated Title IX of the Education Amendments of 1972 (Title IX), and its prohibition against sex discrimination, by converting sex-separated multi-stall restrooms to “all-gender” facilities and enabling students to use restroom facilities that correspond with their gender identity (rather than biological sex) per the “Denver Public Schools LGBTQ+ Toolkit.” Initiated on January 28, 2025, this review constituted the first Title IX-directed investigation by the ED Office for Civil Rights (OCR) under the second Trump administration, and since then, numerous others taking issue with the same facilities and policy-related objections have followed. In an unprecedented move by ED, the investigation of DPS was influenced, at least in part, by a local news story covering this facilities-related conversion at one DPS school, according to DPS.

In December 2024, DPS converted a second-floor multi-stall restroom designated for girls into a restroom for use by both sexes. According to ED, this resulted in male students having access to another restroom on that floor designated exclusively for males and female students having to seek an exclusive restroom elsewhere, denying their right to equal educational facilities and opportunities. When DPS thereafter attempted to rectify the issue by converting the boys’ restroom on the second floor to an “all-gender” restroom as well, ED asserted that it did not resolve the issue because males “were still allowed to invade sensitive female-only facilities” in violation of Title IX.

Consistent with its handling of other Title IX investigations this year, OCR issued a proposed Resolution Agreement to DPS that would require DPS to convert all multi-staff restrooms for use by both sexes back to sex-designated multi-staff facilities, rescind any policies or guidance allowing students to access intimate facilities based on their gender identity, issue a memorandum to DPS schools reiterating these requirements, and adopt biology-based definitions for the words “male” and “female” in all policies and practices related to Title IX. In its press release, OCR provided DPS with 10 days to voluntarily agree to the Resolution Agreement or else “risk imminent enforcement action.” To date, DPS has not capitulated to these demands. Instead, DPS has requested that OCR engage with DPS in a 90-day resolution negotiation, arguing that Title IX does not prohibit conversion of a girls’ restroom to an all-gender facility.

DPS is not alone. As this article highlights, the federal government has threatened to withhold millions in federal funds from five Virginia school districts on similar grounds as a result of district policies that allow students to use bathroom and locker room facilities consistent with their gender identity. Since these schools’ initiation of lawsuits against ED in federal district court and their recent dismissal by a federal judge who found that the court lacked authority to opine on the distribution of federal funds, it is unclear how these cases will proceed. Though a prior Fourth Circuit ruling that mandated a transgender student be permitted to use restroom facilities aligned with his gender identity is an arrow in the Virginia schools’ quiver, should they appeal.

As with many issues concerning the interpretation of Title IX and other federal anti-discrimination laws, it is unlikely that DPS, the Virginia School districts, or others will have certainty until the U.S. Supreme Court issues a ruling on point. In the interim, all schools (and school districts alike)--public and private primary, secondary, postsecondary institutions—should expect that this scrutiny by ED will continue and any policies, protocols, and allowances for “all-gender” usage of restroom and locker room facilities will be strictly construed as violative of Title IX. --- Erin Jones Adams

Trump Admin Plans to Impose 4-Year Limits for Foreign Students Studying in US

“The new rule would end a decades-old policy allowing students to stay for the duration of their studies.”

Why this is important: Last month, the Trump administration announced a proposed rule limiting how long international students can remain in the country. Specifically, the proposed rule would end “duration of status” for F, J, and I nonimmigrants, imposing fixed end dates on Form I-94s, among other limitations. The proposed rule, which is entitled “Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media,” was published by the U.S. Department of Homeland Security (DHS) in the Federal Register on August 28, 2025, with public comments due on or before September 29, 2025.

According to DHS, the proposed rule would limit “visa abuse” and enhance its ability to “properly vet and oversee these individuals” by allowing foreign students and exchange visitors to remain in the country only for the duration of their educational programs, not to exceed four years. Critics assert that the proposed rule would cause institutions to experience increased compliance and legal risks, enrollment impacts, and advising burdens. As this article highlights, because foreign students typically pay more tuition with fewer scholarship opportunities than traditional students, the proposed rule could also have a financial impact on U.S. colleges and universities if it ultimately impaired enrollment.

In the interim, NAFSA: Association of International Educators has published an extensive DHS Proposal to Replace Duration of Status webpage for educational institutions aiming to learn more about the potential effects of this proposed rule and the obligations it imposes on students and schools working with international learners. It is possible that DHS could revise the proposed rule in response to public comments. The proposed rule will not take effect unless or until it is published in the Federal Register and an effective date for its implementation is set. --- Erin Jones Adams

Higher Ed Ramps Up Modular Construction

“Standardization and a factory-like quality control process could lead to fewer problems once buildings are put into service, a Suffolk executive says.”

Why this is important: Modular construction is not new. However, it is becoming more mainstream—accounting for over 5 percent of total construction activity in the U.S.—and for good reason. Without the need to coordinate and stage all building materials and equipment on site, the impact of varying weather conditions, and the problem of coordination of tradespeople who do not normally work together on similar jobs each day, modular construction can certainly save facility owners time and money over traditional stick-built construction. Moreover, in the more controlled environment of modular construction, plumbing, electrical, and mechanical connections throughout the building can be planned and even tested before the “modules” are transported to a site. The more frequently certain module models are built, the more efficient the modular construction company can become.

Often, schools and colleges have time constraints in construction to avoid significant disruptions in the classrooms, laboratories, dorms and campus facilities. In addition, once the facilities are in use, school leaders can find it difficult to schedule building inspections and repairs that allow learning to continue. One way that educational facility construction can minimize construction-related challenges--both from initial construction and an operational and maintenance perspective--is to incorporate modular construction on campuses.

There are approximately more than 250 modular manufacturing companies in North America, one of which is Suffolk Construction. James Stanley, Executive Vice President and Los Angeles Division Manager for Suffolk Construction, was interviewed for the referenced article. Mr. Stanley observed that California Polytechnic State University plans to address expanding student housing needs with modular housing to bring 3,000 additional beds to the university over 10 years. Given the evolution of modular construction that can include more sophisticated designs for good value to the owner, Mr. Stanley points out that modular construction can incorporate standardized base components that may be enhanced or “stacked” on site. According to Mr. Stanley, “Cal Poly could expect to get the main structure for a 100-unit building completed in seven days – 30% quicker than if stick-built – using the modular method, with roughly corresponding savings in cost.”

Having worked for a modular home contractor and watched entire homes being constructed in assembly line fashion inside controlled warehouses near Martinsville, VA, I can personally attest to the time and cost savings of this construction process. If you have questions regarding the potential use of modular construction on your next project, give our construction team a call. --- Stephanie U. Eaton

Higher Ed 2.0: N.C. Schools Tackle AI

“North Carolina universities are partnering with ChatGPT and Google, and some have created new policies about using AI platforms.”

Why this is important: As the use of artificial intelligence (AI) continues to expand, it is becoming more integrated into our lives. One of the largest sectors wrestling with this growth is the education industry and its various learning environments. Setting the bar is North Carolina's higher education, where many colleges and universities are weighing the options and establishing AI protocols that support students’ education and monitor its use in the classroom.

As in many industries, however, key constituents—faculty in particular—are split on how to handle AI. While some believe applicable rules and regulations should be set at the institutional level, others feel that classroom use of AI should be up to individual professors on a class-by-class basis. Notwithstanding, professors and schools alike believe that students should be equipped to work with this evolving technology in order to better understand it, rather than subject to an outright ban on AI use. As this article highlights, many professors are attempting to strike an appropriate balance by allowing the use of AI for specific assignments and banning it for others. This moderated approach aims to mitigate the concern that overreliance on AI will hinder the students' critical thinking ability. According to certain college and university leaders, this technology has not only changed the way students prepare for and perform in classes, but also changed the way faculty members do their jobs.

As one example highlighted in this article, Duke University has taken a more direct approach to AI usage. Specifically, Duke has given all of their students a subscription to ChatGPT, so that no students have an advantage over others who may not be able to afford the program. Duke has also launched DukeGPT, its own interface that will allow users to learn about school events and resources. This move is a part of an overall strategy by Duke to make AI a part of its infrastructure. Many other institutions will surely follow this lead on incorporating AI technology into their programs. --- Nicholas A. Muto

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.