Key Takeaways
- Federal agencies continue to focus on civil rights enforcement, particularly race- and sex-based programs and benefits (including admissions and financial aid); institutions should continue to proactively evaluate policies and procedures.
- Higher education mergers and affiliations are accelerating, but institutions must navigate complex accreditation, state and federal approval processes.
- The U.S. Supreme Court continues to shape higher education law, including its recent Title IX ruling on the meaning of “sex” and an upcoming decision on Title IX employment claims.
- The College Sports Commission solidified its role as an NIL regulator, rejecting approximately $90 million in deals; athletics compliance programs should adapt accordingly.
- Traditional revenue streams are under strain, pushing institutions toward federal grants, research funding, and philanthropy — each carrying its own compliance and False Claims Act exposure.
The National Association of College and University Attorneys (NACUA) Annual Conference in Nashville highlighted several legal developments affecting higher education institutions. From evolving regulatory enforcement priorities to emerging transactional trends, the sessions addressed issues that will shape the upcoming academic year for university counsel and administrators.
Below are developments from this year’s conference that will likely define the upcoming academic year for university counsel and administrators, from intensifying civil rights enforcement to a wave of mergers and NIL disputes.
Civil Rights Enforcement: Federal Agencies Indicate Areas of Interest, and Congress Increases Investigative Activity
Colleges and universities continue to monitor how the current administration approaches civil rights enforcement. Over the past 18 months, federal agencies have focused on admissions practices, gender- and race-based programming, and scholarship and financial aid award processes. Congress also exercised its investigative powers, seeking information from institutions and holding public hearings on areas of concern. New False Claims Act enforcement priorities also placed certifications related to civil rights compliance under the microscope. University attorneys should advise clients on immediate legal risks as well as the growing likelihood of federal scrutiny. Institutions should proactively evaluate their policies and practices to ensure that documentation supports a nondiscriminatory educational rationale for programs and activities.
Mergers, Acquisitions and Affiliations Are Accelerating — With Unique Regulatory Hurdles
A growing number of colleges and universities are considering transactions — mergers, acquisitions or affiliations — to stabilize their finances and optimize resources. Beyond typical due diligence, educational institutions must navigate requirements pertaining to accreditation, state regulatory approvals and federal compliance mandates. University counsel should advise clients early on transaction structure options and compliance with accrediting and regulatory bodies’ substantive change requirements. Proactive engagement with the regulatory compliance landscape ensures continuous and uninterrupted operations.
The Supreme Court’s Influence on Higher Education Law
As interested parties continue to litigate hot-button education policy issues, the U.S. Supreme Court and lower federal courts are playing an increasingly prominent role in higher education law. This term, the Supreme Court ruled that “sex” under Title IX means biological sex (or sex assigned at birth), not gender identity. Next term, the Court is expected to resolve a circuit split over whether employees of federally funded educational institutions can bring employment discrimination claims under Title IX or whether Title VII is their exclusive federal remedy.
The College Sports Commission Takes Active Role as NIL Enforcer
Name, Image and Likeness (NIL) includes endorsements, photos, videos, recordings, digital avatars, social media posts and other ways that student-athletes can monetize their personal brands and reputations. The College Sports Commission (CSC), created following the landmark antitrust settlement in House v. NCAA, is responsible for overseeing institutional revenue-sharing and third-party NIL agreements — and it is quickly establishing itself as a regulator. The CSC’s NIL Go platform rejected approximately $90 million in NIL deals, with particular scrutiny on arrangements lacking a valid business purpose, including third-party deals between student-athletes and donor-backed collectives. University counsel should ensure that athletics department stakeholders understand the CSC’s concerns and how they are likely to affect student-athletes’ NIL deals.
Robust Frameworks for Funding Streams
Higher education institutions increasingly face a climate in which reliable revenue is harder to sustain, requiring them to pursue federal grants, sponsored research funding and private philanthropy while navigating heightened regulatory, enforcement and fiduciary risks. Federal grant and research funding now carry increased scrutiny around certifications, award conditions, DEI-related compliance representations and potential False Claims Act exposure, while agency funding decisions and indirect-cost disputes have made sponsored research support less predictable. On the philanthropic side, operating pressures are placing renewed attention on donor intent, restricted gifts, scholarship criteria, endowment administration and the legal standards for modifying restrictions that have become impracticable or legally vulnerable. For university counsel, the key shift is that funding risk can no longer be treated as a purely budgetary issue; it now sits at the intersection of grants management, civil rights compliance, research administration, governance and litigation preparedness. Institutions should respond by building cross-functional review protocols that vet federal certifications, grant conditions, restricted gift terms and endowment-use constraints before funds are accepted, spent or restructured.
McGuireWoods’ higher education team advises colleges, universities and other institutions on the full range of Title IX, constitutional and regulatory compliance issues, including institutional governance and risk management. As these developments continue to unfold, institutions that act now — rather than waiting for an enforcement action or funding dispute — will be best positioned to manage the risk. For questions about emerging trends in higher education law, contact the authors, your McGuireWoods contact, or a member of the firm’s Higher Education Enforcement & Regulatory Counseling Practice Group.