Education Matters
Amy
Stephanie
AGE DISCRIMINATION
Ninth Circuit Rules Residency Selection
Is An Employment Practice Exempt From The Age Discrimination Act.
Jordan Spatz graduated from the University of California, San Francisco (UCSF) medical school in 2021 at the age of 36. In 2017 and 2018, while in medical school, he reported two instances of alleged age-based harassment. His academic record was mixed, and he received some negative reviews during his sub-internships. Sub-internships are advanced clinical rotations in which senior medical students take on responsibilities similar to first-year residents and are evaluated for residency readiness.
Spatz applied to UCSF’s neurological surgery residency program during the 2020 cycle of the National Resident Matching Program (NRMP). The NRMP, also known as “the Match,” is the nationwide system that pairs medical graduates with residency programs through a computer algorithm. The algorithm matches applicants and programs based on the rankings submitted by both sides. Spatz applied to 18 neurological surgery programs in 2020 and listed UCSF as his first choice. He did not match anywhere that year because no residency program ranked him. He applied again in 2021. Once again, no program ranked him, and he did not match anywhere. Spatz later argued that if UCSF had ranked him, he would have matched into its program. In 2022, Spatz applied a third time, but UCSF did not interview him, and he again failed to match anywhere.
After failing to match in 2022, Spatz filed suit against the Regents of the University of California. His complaint asserted seven causes of action, including age discrimination under the federal Age Discrimination Act of 1975 (Age Act), several claims under California’s Fair Employment and Housing Act (FEHA), and a whistleblower retaliation claim. Spatz argued that UCSF faculty considered his age in the selection process and that UCSF’s refusal to rank him resulted from age discrimination. Spatz also alleged retaliation for reporting age discrimination in 2017 and 2018, and for filing a 2020 formal complaint alleging age, disability, and national origin discrimination.
UCSF denied that age played any role in its decisions. UCSF argued that it did not rank Spatz because of his mediocre grades, poor sub-internship performance, and the highly competitive nature of its neurosurgery residency program, which admitted only three to four residents from more than 300 applicants each year. UCSF moved for summary judgment and asked the federal district court to dismiss all claims. Spatz only opposed summary judgment on his Age Act claim and did not oppose summary judgment on his state-law claims.
The trial court granted summary judgment in full. It held that the Age Act did not apply because UCSF’s refusal to rank Spatz constituted an “employment practice of an employer,” which the statute expressly exempts from coverage under 42 U.S.C. section 6103(c) (1). The trial court further held that, even if the Age Act applied, Spatz failed to raise a genuine dispute of material fact. Spatz appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit analyzed the Age Act’s language, which prohibits age discrimination in federally funded programs but exempts “any employment practice of any employer.” The Ninth Circuit applied the common-law meaning of “employer” and “employment practice.” It noted that medical residency has many characteristics of employment. Residents require substantial skill, work at hospital facilities, provide direct patient care under the hospital’s control, work long hours, receive salaries and benefits, and are taxed as employees. The Ninth Circuit examined the Supreme Court precedent that held that residents are employees for tax purposes. The Ninth Circuit also explained that the California Supreme Court and the National Labor Relations Board recognized residents as employees entitled to labor rights, and California appellate courts have emphasized the employee-employer nature of residency relationships. Based on these factors, the Ninth Circuit concluded that ranking residency applicants is the functional equivalent of hiring employees and thus qualifies as an employment practice excluded from the Age Act’s coverage.
Spatz argued that the legislative history of the Age Act showed Congress intended the statute to apply to medical schools. The Ninth Circuit rejected this
argument because Spatz failed to provide proper citations, and the language he relied on referred only to medical schools, not residency programs. The Ninth Circuit also rejected his argument that the discrimination occurred while Spatz was a medical student, explaining that the relevant inquiry was whether UCSF’s refusal to rank him for residency constituted an employment practice. The Ninth Circuit held that it did, because residency ranking determines who will work as a resident physician, and residents function in practice as hospital employees rather than students.
The Ninth Circuit held that, even if the Age Act applied, Spatz failed to raise a genuine issue of material fact. UCSF presented evidence that his grades and sub-internship performance were weak, and faculty testified that age played no role in the selection process. Spatz did not produce admissible evidence to rebut this.
The Ninth Circuit affirmed the district court’s grant of summary judgment.
Spatz v. Regents of the Univ. of Cal. (9th Cir. Aug. 18, 2025, No. 24-2997).
CONSTITUTIONAL LAW
Ninth Circuit Allows Professors To Pursue First Amendment Claims Over Investigations Into Faculty Listserv Emails.
Abraham Flaxman and Amy Hagopian are professors at the University of Washington. They serve as the primary moderators of the “Faculty Issues and Concerns” listserv, which has more than 2,000 faculty subscribers. The listserv is designed to facilitate communication among faculty about higher education issues. Moderators do not screen messages for political or controversial content but instead focus on filtering out personal attacks or excessive backand-forth exchanges to keep discussions manageable.
In December 2022, the Washington State Executive Ethics Board (Board) received an anonymous complaint alleging that Flaxman misused state resources by forwarding an email to the listserv about Whole Washington, a campaign for universal healthcare. The complaint alleged that Flaxman violated Washington’s Ethics in Public Service law (Ethics Law), Wash. Rev. Code section 42.52, which prohibits state employees from using public resources for personal gain or political campaigns. The Board reviewed all of Flaxman’s emails from a three-month period. The Board found reasonable cause to believe he had violated the Ethics Law and suggested the penalty could exceed $500. The Board later dismissed the matter after he retained counsel.
In June 2023, the Board received another anonymous complaint after Flaxman forwarded an email about a potential strike by research scientists and postdoctoral scholars at the University of Washington. The email listed ways to support the strike, including making donations to a hardship fund. The Board again reviewed Flaxman’s emails from a three-month period. In doing so, it found another violation of the Ethics law, but classified it as minor and imposed no penalty.
In December 2022, the Board received an anonymous complaint that Hagopian had violated the Ethics Law by forwarding an email about a University of California strike to the listserv. That message urged faculty to contact elected officials, post on social media, and donate to a strike fund. The Board reviewed more than 2,000 of her emails, which included personal items such as boarding passes, news alerts, and promotional emails. It concluded that Hagopian violated the Ethics Law by soliciting donations and using her state email for personal benefit. The Board fined her $750.
In October 2023, Flaxman and Hagopian filed suit challenging the Board’s investigatory practices, including its acceptance of anonymous complaints, its broad review of faculty email accounts, its treatment of incidental financial
solicitations as violations, and its imposition of what they described as excessive penalties. Flaxman and Hagopian filed their complaint on behalf of themselves and a proposed class of listserv subscribers. They alleged that the Board’s policies chilled their First Amendment free speech rights and restricted discussion on the faculty listserv.
The federal district court held that the claims were not ripe for review and dismissed the complaint under Federal Rule of Civil Procedure 12(b)(1). The district court reasoned that the professors had not adequately alleged that the Board had chilled their speech. It also found that, because the professors were public employees, they had no First Amendment privacy interest in their emails. It reasoned that faculty emails are treated as public records under Washington law and subject to disclosure, so professors could not claim a privacy right in them. Finally, the district court concluded the claims were prudentially unripe because Board investigations were still pending. Flaxman and Hagopian appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit reversed. It first addressed constitutional ripeness. The Ninth Circuit explained that constitutional ripeness overlaps with Article III standing and asks whether a plaintiff has alleged an injury that is concrete and imminent rather than speculative. The Ninth Circuit noted that in First Amendment cases, courts apply this standard more flexibly because of the risk that speech will be chilled. Plaintiffs may bring preenforcement challenges if there is a credible threat of enforcement.
The Ninth Circuit held that Flaxman and Hagopian’s case was constitutionally ripe because they remained moderators of the listserv, the challenged policies were still in place, and the Board had already enforced those policies against them. The Ninth Circuit explained that past enforcement against the same individuals strongly indicates that a threat of future enforcement is real, not hypothetical.
The Ninth Circuit also addressed Flaxman and Hagopian’s argument that the Board had already retaliated against them. It held that their retaliation argument was constitutionally ripe because they had already suffered concrete injury through investigations, intrusive email searches, and, in Hagopian’s case, a monetary fine.
The Ninth Circuit further held that the claims were prudentially ripe. The Ninth Circuit explained that
prudential ripeness is a discretionary doctrine that considers (1) whether the issues are fit for judicial decision and (2) whether withholding review would cause hardship. It found both factors present in this case. First, the professors were challenging Board policies that had already been used against them, making the issue fit for review. Second, withholding review would impose hardship because they had already endured intrusive email searches and financial penalties and faced a credible risk of similar enforcement in the future.
The Ninth Circuit emphasized that the district court’s reasoning, that public employment eliminated any First Amendment privacy interest, went to the merits of the case, not to ripeness. It concluded that the case presented a live controversy appropriate for judicial resolution.
Judge Bennett dissented. He argued that the professors failed to plead a constitutionally sufficient injury. He found their allegations of chilled speech too vague and criticized the lack of specific allegations about their own intended future speech. He would have affirmed the dismissal but remanded to allow the professors to amend their complaint.
The Ninth Circuit reversed the district court’s dismissal and remanded for further proceedings.
Flaxman v. Ferguson (9th Cir. Aug. 22, 2025, No. 24-919) 2025 LX 310391.
Ninth Circuit Holds That California May Mandate A Secular Curriculum For Charter School
Independent Study Programs.
In 1992, California authorized the creation of charter schools as part of its public school system. These schools may operate non-classroom-based independent study programs, in which parents provide instruction at home under the supervision of state-certified teachers. To participate, parents must sign written agreements specifying objectives, study methods, and evaluation standards, and the schools provide the necessary curricular materials.
John and Breanna Woolard, Hector and Diana Gonzales, and Carrie Dodson enrolled their children in independent study programs at charter schools Blue Ridge Academy (Blue Ridge) and Visions in Education (Visions). Blue Ridge operates under the chartering
authority of the Maricopa Unified School District, while the San Juan Unified School District charters Visions.
The parents asked the schools to purchase religious curricula for use in those programs. The Woolards requested that Blue Ridge purchase Bob Jones University’s Focus on Fives, a “worldview shaping” kindergarten curriculum that teaches, “God is great, and God is good; God created me and all things; the Bible is God’s Word, and it is true; and I learn in order to serve God and others.” The Gonzaleses requested a similar Bob Jones University curriculum. The Gonzaleses and the Woolards also asked Blue Ridge to purchase Bede’s History of Me, a book designed to introduce timelines while teaching “how God works in time.” Dodson asked Visions to purchase The Good and the Beautiful, a “faith-based curriculum” that emphasizes “family, God, high character, nature, and wholesome literature.” The schools denied the requests, citing California’s constitutional and statutory requirements that public schools, including charter schools, be nonsectarian.
The parents sued the charter schools, their officials, the chartering school districts, and the State Superintendent of Public Instruction under 42 U.S.C. section 1983. They claimed that the refusal to purchase religious materials violated the Free Exercise Clause of the U.S. Constitution by excluding them from a generally available public benefit. They also claimed it violated the Free Speech Clause by compelling them to use only secular curricula.
The defendants argued that charter schools are public schools subject to California’s constitutional mandate to provide secular education. They argued that curriculum decisions are government speech, not subject to First Amendment challenge. The federal district court dismissed the complaint for failure to state a claim. It ruled that charter schools may provide only secular education, that plaintiffs were not excluded from any generally available public benefit, and that curriculum choices are government speech. The parents appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit first addressed the Free Exercise Clause claim. It noted recent Supreme Court decisions holding that states cannot deny generally available public benefits based on religious status or use. However, the Ninth Circuit emphasized that California’s independent study programs remain part of the public school system, not private homeschooling. Like other public schools, these programs must accept students without tuition, meet detailed state curricular standards, administer state assessments, and operate under the supervision of
certified teachers. Because of these requirements, the Ninth Circuit held that the independent study programs are “sufficiently public” to permit California to require secular curricula without violating the Free Exercise Clause.
The Ninth Circuit then analyzed the Free Speech Clause claim. The parents argued that selecting curricula for their children was private speech and that forcing them to rely on state-approved secular materials compelled them to endorse messages contrary to their beliefs. The Ninth Circuit rejected this argument, holding that the curriculum is government speech because it expresses the educational policy of the public schools. The Ninth Circuit explained that curriculum decisions remain government speech even when parents deliver instruction at home and even if schools allow some parental choice. Because government speech is not subject to the Free Speech Clause scrutiny, plaintiffs failed to state a claim.
The Ninth Circuit affirmed the district court’s dismissal of the complaint.
Woolard v. Thurmond (9th Cir. Sep. 11, 2025, No. 24-4291).
Ninth
Circuit Partly Upholds, Partly Limits Oregon Department Of Education’s Nondiscrimination Rule For Religious Grantees.
Youth 71Five Ministries is a Christian nonprofit organization that provides youth programs such as mentoring, vocational training, and youth centers. While its services are open to all youth, its stated mission is to “teach and share about the life of Jesus Christ.” To advance this mission, 71Five requires all board members, employees, and volunteers to affirm a Christian Statement of Faith and participate actively in a local church.
Since 2017, the Oregon Department of Education’s Youth Development Division (Division) had awarded 71Five multiple grants. For the 2023–2025 grant cycle, the Division added a new eligibility rule requiring applicants to certify that they do not discriminate in employment, vendor selection, subcontracting, or service delivery based on protected characteristics, including religion. 71Five applied for funding, and the Division conditionally awarded them $410,000. However, the Division later withdrew the grants after confirming that 71Five required its employees and volunteers to be practicing Christians, a policy that conflicted with the nondiscrimination rule.
71Five sued the Director of the Oregon Department of Education, the Director of the Youth Development Division, and the Deputy Director of the Youth Development Division, under 42 U.S.C. section 1983, in their personal and official capacities. It alleged that enforcement of the non-discrimination rule violated its First Amendment rights to free exercise of religion, religious autonomy, and expressive association. It sought declaratory and injunctive relief, as well as damages, and it moved for a preliminary injunction to reinstate its conditional grant awards.
The federal district court denied the preliminary injunction. It found that 71Five was unlikely to succeed on the merits of its constitutional claims, that any monetary harm could be rectified later, and that the balance of equities and public interest did not favor injunctive relief. The district court also dismissed all claims, including those for declaratory and injunctive relief, on the ground that qualified immunity protected the defendants. Qualified immunity shields government officials from damages liability unless they violate clearly established rights. 71Five appealed to the Ninth Circuit. Ninth Circuit motions panel granted an emergency injunction pending appeal, allowing limited funding while the Ninth Circuit expedited review of the case.
The Ninth Circuit affirmed in part and reversed in part. On the Free Exercise Clause claim, the court held that the nondiscrimination rule likely does not violate the Free Exercise Clause. It found the nondiscrimination rule is neutral because it does not target religious beliefs and is generally applicable because it applies equally to secular and religious organizations. Therefore, the rule is subject only to rational basis review, which it likely satisfies because Oregon has a legitimate interest in ensuring that employees, volunteers, and participants have equitable access to grant-funded programs.
The Ninth Circuit rejected 71Five’s reliance on religious autonomy doctrines such as ecclesiastical abstention and the ministerial exception. Ecclesiastical abstention limits courts from resolving disputes over religious doctrine, and the ministerial exception exempts religious institutions’ employment decisions about ministers from government interference. The Ninth Circuit explained that these doctrines operate as defenses in litigation rather than as standalone claims under 42 U.S.C. section 1983 against state officials.
On the expressive association claim, the Ninth Circuit recognized that the nondiscrimination rule burdens 71Five’s ability to select faith-aligned employees and volunteers. However, the Ninth Circuit concluded that the rule was likely permissible as a viewpoint-neutral and reasonable condition in the context of Division-funded initiatives. The Ninth Circuit held that, to the extent the rule applied to 71Five’s initiatives that did not receive grant funding, it likely imposed an unconstitutional condition by leveraging public funds to regulate speech and association outside the context of the funded program.
Finally, the Ninth Circuit addressed qualified immunity. It affirmed the dismissal of 71Five’s claims for damages, holding that no clearly established law prohibited attaching nondiscrimination conditions to grant funding. At the same time, it reversed the dismissal of 71Five’s claims for declaratory and injunctive relief, noting that qualified immunity does not shield government officials from equitable remedies.
The Ninth Circuit affirmed in part, reversed in part, and remanded. It upheld the denial of preliminary relief as to Division-funded initiatives but ordered the district court to enjoin enforcement of the rule against 71Five’s unfunded initiatives. It also reinstated 71Five’s claims for declaratory and injunctive relief while affirming dismissal of damages claims under qualified immunity.
Youth 71Five Ministries v. Williams (9th Cir. Aug. 18, 2025, No. 24-4101).
Note:
This case is relevant to California school districts and community college districts that partner with outside organizations using public funds. The case indicates that districts may impose nondiscrimination rules on grant-funded activities, including those run by religious groups, so long as the rules are neutral and generally applicable. However, districts may not be able to extend those rules to regulate the group’s unfunded, independent activities without risking a constitutional violation.
FREE SPEECH
Court Holds Gender Identity Discussions At A School-Sponsored Camp Setting Are Protected Activity Under Anti-SLAPP Statute.
Two fifth grade students, ages 10 and 11, attended a four-day overnight science camp that the Los Alamito Unified School District organized and the Pali Institute, Inc. (Pali) operated. Multiple camp counselors introduced themselves to the students using “they/them” pronouns, asked students to state their preferred pronouns, and discussed issues relating to transgender and sexual identity. Students slept in a dormitory supervised by a counselor who used they/ them pronouns. When the students asked to call their parents to discuss these matters, counselors denied the requests, citing a Pali policy that prohibited phone calls home. The students alleged that these experiences caused them severe emotional distress.
After returning home from the camp, the students and their families sued Pali and the District for intentional infliction of emotional distress and negligent infliction of emotional distress. They alleged that Pali and the District intentionally, or at least negligently, exposed them to age-inappropriate content without parental consent and should have allowed the students to call their parents.
Pali filed a motion to strike under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16. An antiSLAPP motion allows a defendant to seek early dismissal of claims that arise from constitutionally protected speech on matters of public interest, unless the plaintiff can show the claims have minimal merit. Pali argued that the claims arose from camp counselors’ communications about gender identity, a topic of broad public concern, and therefore qualified as protected speech.
The student plaintiffs opposed the anti-SLAPP motion and argued that their claims arose not from speech but from Pali’s failure to disclose information to parents and its refusal to allow children to contact their families. Plaintiffs also requested attorney fees, arguing that Pali’s anti-SLAPP motion was frivolous. The trial court denied Pali’s anti-SLAPP motion, finding that the claims did not arise from protected activity, and denied the plaintiffs’ attorneys’ fee request. Pali appealed, and the plaintiffs cross-appealed.
The court of appeal described the two-step framework for analyzing anti-SLAPP motions. First, the defendant must show the challenged claims arise from protected speech or conduct on an issue of public interest. If the defendant meets that burden, the second step requires the plaintiff to show the claims have at least “minimal merit.” To do so, the plaintiff must present admissible evidence that, if true, would establish each element of the claim and support a judgment in the plaintiff’s favor.
First, the court of appeal concluded that the camp counselors’ discussions about gender identity qualified as protected speech on an issue of significant public interest. The court of appeal rejected the students’ attempt to frame their claims as concerning only failure to disclose information to parents and phone call policies. It found that the allegations of emotional distress arose, at least in part, from the counselors’ gender identity discussions. Therefore, portions of the emotional distress claims arose from protected activity. However, the court of appeal also found that claims based solely on Pali’s no-call-home policy, sleeping arrangements, or nondisclosure of counselor identities did not arise from protected activity and therefore fell outside the anti-SLAPP statute.
At the second step of the analysis, the court of appeal held that the students failed to show “minimal merit” for the claims tied to protected activity. The students failed to substantiate their claims because they did not present admissible evidence of Pali’s conduct and the students’ emotional distress. The students relied only on a declaration from one student’s mother, much of which consisted of inadmissible hearsay.
The court of appeal reasoned that, even if the declaration was admissible, the allegations did not establish liability as a matter of law. Exposing students to discussions of gender identity in a school-related setting did not amount to outrageous conduct sufficient to support a claim for intentional infliction of emotional distress. It also did not create a breach of duty sufficient to support a claim of negligent infliction of emotional distress. The court of appeal explained that recognizing such liability would conflict with California’s public policy, which protects gender identity and promotes inclusion in education. The court of appeal further affirmed the trial court’s denial of plaintiffs’ attorney fees because Pali’s anti-SLAPP motion had partial merit and was not frivolous.
The court of appeal affirmed in part and reversed in part. It ordered the trial court to vacate its order that had denied Pali’s anti-SLAPP motion. The court of appeal instructed the trial court to grant the anti-SLAPP motion on the claims that relied on gender identity discussions and on Pali’s alleged failure to disclose those discussions to parents. It instructed the trial court to deny the anti-SLAPP motion on the remaining claims, which involved the no-call-home policy, sleeping arrangements, and nondisclosure of counselor identities. In addition, the court of appeal affirmed the trial court’s denial of the plaintiffs’ attorney fee request and awarded Pali its costs on appeal.
Sandoval v. Pali Institute, Inc. (2025) 113 Cal.App.5th 616.
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U.S. DEPARTMENT OF EDUCATION
Maryland District Court Declines To Block Trump Administration’s Moves To Dismantle Department Of Education.
On January 20, 2025, President Trump began his second term after campaigning on a promise to close the U.S. Department of Education. Soon after, his administration announced a reduction in force that cut nearly half the Department of Education’s workforce, locked employees out of systems, and left key offices, including the Institute of Education Sciences, Federal Student Aid, and the Office for Civil Rights, unable to carry out many of their statutory duties.
The NAACP, several of its branches, the National Education Association, Prince George’s County Educators Association, AFSCME Council 3, and parents of public school children filed suit against the administration in March 2025. They alleged that the administration’s actions, along with President Trump’s March 20 Executive Order instructing the Secretary of Education to take steps to close the Department of Education, constituted an unlawful dismantling of the agency. The plaintiffs claimed violations of the Take Care Clause, the Appropriations and Spending Clauses, separation of powers, the Administrative Procedure Act, and ultra vires action, and sought declaratory and injunctive relief.
Judge Julie R. Rubin of the District of Maryland denied both the plaintiffs’ motion for a preliminary injunction and the government’s motion to dismiss, each without prejudice. The federal district court noted that federal courts had reached different conclusions on similar challenges. Additionally, the Supreme Court had stayed preliminary injunctions in related cases, which signaled that the government was likely to succeed on appeal. Against that backdrop, the district court concluded that plaintiffs had not shown the clear likelihood of success required for extraordinary relief.
The district court also stressed that the sweeping relief the plaintiffs sought, which included vacating the reduction in force, reinstating terminated functions, and halting grant cancellations, would effectively require the court to oversee the Department’s day-to-day operations. The district court explained that this would improperly insert the judiciary into management of the executive branch, which the Constitution assigns to the political branches.
The district court denied the government’s dismissal motion administratively to allow refiling or an answer after further proceedings. The case remains pending, with the government required to respond within 30 days.
NAACP v. United States (D.Md. Aug. 19, 2025, No. 8:25-cv00965-JRR).
Legal Updates
Weekly Executive Order Roundups.
Since taking office, President Trump has issued a series of executive orders, several of which have direct implications for public agencies, including institutions of public education. In light of the volume and rapid issuance of executive orders, beginning in early February, LCW launched a weekly roundup of new executive orders that may impact public agency clients, including those in public education.
Our Week 28 Executive Order Roundup describes the following education-related update:
• UPDATE: Judge Permanently Blocks Two Memoranda Related to DEI Programs in Education
On August 14, 2025, U.S. District Judge Stephanie Gallagher blocked the Department of Education from enforcing two memos that conditioned funding on schools’ certification that they do not operate unlawful diversity, equity, and inclusion (DEI) programs.
The first memo, a Dear Colleague Letter issued on February 14, 2025, clarified the Department’s position that it is unlawful for educational institutions to consider race in nearly all aspects of academic and campus life. The letter also warned that schools that violate that obligation may lose federal funding. The second notice, dated April 3, 2025, stated that state education agencies and local education agencies must sign and return a certification to the Department certifying that they do not operate unlawful DEI programs in order to preserve their federal financial assistance.
The Trump administration has been prohibited from enforcing the memos since April, when three district courts issued temporary injunctions related to the memos.
In issuing a permanent injunction, Judge Gallagher reasoned that the Department did not issue either action in accordance with the procedural requirements of the Administrative Procedure
Act. She also found that both actions run afoul of constitutional rights, in part because they risked constraining educators’ free speech rights in the classroom.
The ruling will not lead to immediate changes for schools or colleges, as the Department has not been enforcing the memos since April.
Our Week 30 Executive Order Roundup describes the following education-related update:
• PRESIDENTIAL MEMORANDUM: Use of Appropriated Funds for Illegal Lobbying and Partisan Political Activity by Federal Grantees
On August 28, 2025, President Trump issued a memorandum directing the Attorney General to investigate whether federal grant funds are being “illegally used to support lobbying activities and to take appropriate enforcement action.”
The memorandum focuses on the use of federal funds for grants with political overtones, which, according to the administration, raises concerns that grantees are unlawfully using the funds for lobbying or political advocacy. The Fact Sheet accompanying the memorandum provides examples of grants that the administration intends to investigate, including the U.S. National Science Foundation funding a grant to advance racial justice in elementary mathematics.
The memorandum directs the Attorney General to provide a report on her investigation to the President within 180 days. Thus, the memorandum will not have an immediate impact on the availability of federal funds.
• UPDATE: Ninth Circuit Blocks President Trump’s Freeze on UC Research Grants (August 28, 2025)
On August 21, 2025, the Ninth U.S. Circuit Court of Appeals denied the Trump administration’s request to stay a June 2025 preliminary injunction that required the federal government to reinstate terminated research grants to the University of California (UC). The administration initially froze the grants pursuant to President Trump’s January 20th Executive Order targeting funding
related to diversity, equity, inclusion (DEI), and environmental justice.
The Ninth Circuit dismissed the government’s arguments that the terminations were discretionary and insulated from judicial review. The court emphasized that under federal regulations, executive agencies cannot arbitrarily cut funding without clear reasoning. The court also reasoned that the selective targeting of DEI and environmental justice projects amounted to unconstitutional viewpoint-based restrictions.
The order will not have an immediate impact on the UCs, as the administration has been prohibited from freezing the funds since June.
U.S. Department Of Education Issues Dear Colleague Letter On Voter Registration And Federal Work Study.
On August 19, 2025, the U.S. Department of Education issued a Dear Colleague Letter clarifying colleges’ responsibilities for distributing voter registration forms and the use of Federal Work Study (FWS) funds. The Department rescinded two earlier guidance documents (GEN-22-05 and GEN-24-03) that had expanded the ways institutions could use FWS funds for voter registration. It now directs institutions to avoid using FWS funds for any work that involves “partisan or nonpartisan political activity.” This includes activities such as conducting voter registration drives, serving as a poll worker, or staffing voter hotlines, whether on or off campus. Instead, the Department encourages schools to place students in FWS positions that connect to their academic programs and career development.
The Department also reaffirms that, under the Higher Education Act, covered colleges must make a good-faith effort to distribute voter registration forms to students either in paper or electronic form. It urges institutions to remind students of voting eligibility rules, including citizenship, residence requirements, and prohibitions on double voting or falsifying information. The Department encouraged colleges to “remain mindful of their existing obligations under the law to avoid aiding and abetting voter fraud, such as actions to aid and abet a noncitizen to vote in a federal election.” The Department clarifies that schools may withhold voter registration materials from students they reasonably
believe cannot vote in federal or state elections, such as foreign students.
U.S. Department Of Education Proposes Amendments To PSLF Regulations To Exclude Employers Engaged In A Substantial Illegal Purpose.
On August 18, 2025, the U.S. Department of Education proposed amendments to the Public Service Loan Forgiveness (PSLF) regulations to exclude employers that engage in activities with a “substantial illegal purpose.” The proposal would revise the definition of a qualifying employer and add explicit definitions for terms including aiding or abetting, chemical castration or mutilation, child or children, foreign terrorist organizations, illegal discrimination, other federal immigration laws, substantial illegal purpose, surgical castration or mutilation, terrorism, trafficking, violating state law, and violence aimed at obstructing or influencing federal government policy. Under the rule, borrowers employed by organizations found to have a substantial illegal purpose would stop receiving credit toward PSLF after the Secretary makes that determination.
The proposal also establishes procedures to notify employers and affected borrowers when an organization risks losing eligibility, and it provides employers the opportunity to respond before a final decision. Borrowers could not request reconsideration of a determination that an employer lost PSLF status for illegal activity. Employers that lose eligibility could regain PSLF status either after ten years from the Secretary’s determination or sooner if the Secretary approves a corrective action plan. The Department states that these changes will protect taxpayer funds, align PSLF with its public service mission, and ensure that forgiveness benefits only go to borrowers working for employers that comply with federal and state law.
U.S. Department Of Justice Declines To Defend Funding Of Hispanic-Serving Institutions In Pending Lawsuit.
On July 25, 2025, the U.S. Department of Justice sent a letter to Congress announcing that it does not intend to defend the constitutionality of Higher Education
Act provisions that provide funding to Hispanic-Serving Institutions (HSIs), which are being challenged in State of Tennessee v. Department of Education. Under the statute, HSIs are defined as colleges where at least 25% of full-time equivalent undergraduates are Hispanic.
Plaintiffs in the case allege that federal programs offering aid to HSIs are unlawful. In its letter, the Department of Justice stated that the 25% enrollment requirement violates the equal protection component of the Fifth Amendment’s Due Process Clause. Citing Students for Fair Admissions v. Harvard (2023), the Solicitor General explained that racial quotas are “patently unconstitutional” and that the government has no legitimate interest in differentiating universities based on whether a specified share of students come from “preferred ethnic groups.”
California Community Colleges Board Of Governors Adopts Flexible Calendar Regulation Effective September 18, 2025.
On August 19, 2025, the California Community Colleges Board of Governors approved regulatory action entitled “Flexible Calendar,” which was filed with the Office of Administrative Law and the California Secretary of State. This regulation becomes effective 30 days from the August 19, 2025, filing date or September 18, 2025 Pursuant to California Code of Regulations, section 52010, college districts may conform their policies and procedures to the regulatory requirements within one hundred and eighty (180) days of the effective date.
California Community Colleges, Chancellor’s Office Issues Notice Of Proposed Rulemaking Titled “Academic Progress Notice And Pause & Academic Renewal.”
The California Community Colleges, Chancellor’s Office has issued a notice of proposed rulemaking titled “Academic Progress Notice and Pause & Academic Renewal.” Comments must be received by the Regulations Coordinator prior to 4:00 p.m. October 17, 2025. As stated in the notice, please email any comments to the regulations email account, regcomments@cccco.edu.
The notice and proposed text are available on the Office of General Counsel page of the Chancellor’s website at Office of the General Counsel - Pending Regulatory Action.
TIME TO UPDATE YOUR EEO PLANS (CCDs)
As we look ahead to the 2026 Equal Employment Opportunity (EEO) Plan cycle, now is the time for Community College Districts to begin reviewing and updating their existing EEO Plans. The California Community Colleges Chancellor’s Office requires districts to submit updated plans every three years, and summer 2025 provides an ideal window to begin this work.
Districts should ensure their plans align with the latest regulatory requirements, reflect current hiring practices, and incorporate updated workforce data and analysis. Early preparation will support smoother approvals and demonstrate your district’s ongoing commitment to diversity, equity, and inclusion in employment practices.
Need assistance with your EEO Plan update? LCW is here to help you navigate the legal requirements and develop a plan that meets both state expectations and your institution’s goals!
BUSINESS & FACILITIES
Districts Can Still Be Liable For Abuse At Overnight Field Trips.
Mount Pleasant Elementary School District (District) contracted with the Santa Clara County Office of Education (SCCOE), which owned and operated Walden West Outdoor Science School (Walden West), to provide a four-day overnight science program to District students. SCCOE staff directly supervised students overnight, while District teachers assisted with activities and remained on call. During the program, an SCCOE night supervisor sexually assaulted a fifth-grade District student, “Jane Doe,” multiple times.
Doe’s parents sued the SCCOE and the District for negligence, alleging they knew or should have known that the supervisor had engaged in sexual misconduct and was under investigation for child pornography. The complaint alleged the District failed to protect the students, claiming the District assured parents of constant supervision of students, yet permitted a high-risk supervisor to oversee children overnight.
The District moved for summary judgment, arguing that Education Code section 35330 (Section 35330) barred the claims because parents waived liability for injuries during field trips or excursions, and that Education Code section 44808 (Section 44808) shielded the District from liability because the injury occurred off campus when the student was not under the immediate or direct supervision of District staff. The trial court granted summary judgment, but the court of appeal reversed, holding that neither statute protected the District from liability.
The court of appeal first addressed Section 35330, which deems parents to have waived claims for injuries during “field trips or excursions.” It clarified that not every school-sponsored outing qualifies, since the statute applies to recreational or observational activities, not curricular programs that meet state-mandated requirements. Walden West satisfied the District’s science
curriculum requirements, and students who opted out received science instruction at their home school, showing that the program substituted for coursework rather than providing an optional outing. The court of appeal also emphasized that Section 35330 creates only a deemed waiver of ordinary negligence claims and does not grant absolute immunity or bar suits alleging gross negligence or intentional torts. Public policy weighed against immunity because Doe alleged gross negligence, claiming the District knew or should have known the nighttime supervisor was unfit, failed to provide promised overnight monitoring, and misled parents about constant supervision. The court of appeal, therefore held that Section 35330 did not apply and that the District could not rely on its protections to bar the claims.
Section 44808 limits a district’s liability for off-campus injuries to prevent unlimited exposure once students leave campus, but the court of appeal clarified that it does not apply when district employees actually supervise or should supervise students. Here, the District failed to show its staff had no duty of immediate and direct supervision at Walden West because the District communicated to parents that teachers were expected to supervise students throughout the program and promised parents constant supervision. Additionally, allegations that the nighttime supervisor was dangerous and unfit created a factual dispute over whether the District needed to provide closer oversight instead of leaving students solely under SCCOE’s care. The court of appeal stressed that allegations of gross negligence, such as ignoring known risks and failing to provide promised supervision, raise factual issues for a jury. Because the District presented no evidence that eliminated these issues, the court of appeal concluded that Section 44808 could not bar the claims.
Implications for Districts.
For districts operating field trips, Doe signals that courts will take a narrow view of statutory defenses under Education Code sections 35330 and 44808. Districts
cannot assume that every off-campus program qualifies as a “field trip or excursion” simply because it occurs away from campus. The court of appeal emphasized substance over labels, finding that Walden West fulfilled state science requirements and therefore served a curricular purpose. This distinction matters because programs tied to curriculum may not fall within the statutory waiver provisions of Section 35330.
The court of appeal also made clear that Section 35330 does not grant absolute immunity. Even if a program qualifies as a field trip, claims alleging gross negligence or intentional misconduct survive. Allegations that a district ignored known risks, failed to provide promised supervision, or allowed unsafe staff to oversee students will likely proceed to trial.
Section 44808 received similar treatment. The court of appeal stressed that this provision does not eliminate all liability for off-campus injuries. If a district promises
or undertakes “immediate and direct supervision,” courts will examine whether district employees actually fulfilled that responsibility. In Doe, evidence that teachers were expected to supervise at all times, combined with parental assurances of constant monitoring, created a triable issue of fact.
Ultimately, the case underscores that statutory defenses cannot substitute for clear supervision policies, robust risk assessments, and accurate communication with families. Districts must honor supervision commitments and deliver on any assurances that students will be under constant supervision. Courts may scrutinize relationships with outside providers, asking whether the District vetted staff, documented safety procedures, or secured contractual assurances of student protection. In practice, Doe suggests that courts will favor the protection of minors over strict reliance on statutory defenses.
Doe v. Mount Pleasant Elementary School Dist. (Aug. 29, 2025, No. H050830) ___Cal.App.5th___.
Benefits Corner
New ACA Affordability Percentage For 2026 Is 9.96 Percent.
The IRS has set the new Affordable Care Act (ACA) affordability percentage to 9.96% for 2026. This new affordability percentage is 0.94% higher than the current 2025 affordability percentage (i.e. 9.02%). (Rev. Proc. 2025-25 (July 18, 2025).)
While the Internal Revenue Code originally set the affordability threshold to 9.5%, the Internal Revenue Service (IRS) retains the authority to release an adjusted percentage each year. (See 26 U.S.C. section 36B(c)(2) (C)(i).) From 2015 to 2022, the IRS set an affordability percentage above 9.5%, going as high as 9.86% in 2019. For 2023, the IRS dropped the affordability percentage below 9.5% for the first time by setting it at 9.12% and then dropped it even lower at 8.39% for 2024. The new 2026 affordability percentage of 9.96% is the highest it has ever been.
Applicable large employers are advised to check whether their offers of employer-sponsored health coverage for 2026 are affordable using the 9.96% threshold. To determine whether an offer of health coverage is affordable, an employer must run an affordability calculation to determine whether an employee’s “Required Contribution” toward the premium for the lowest cost employee-only coverage exceeds or does not exceed 9.96% of the employee’s household income for the 2026 taxable year. Since employers typically do not know the total household income of each of their employees, the ACA provides three affordability safe harbor options an employer may adopt and apply on a reasonable and consistent basis:
1. Under the Form W-2 Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 9.96% of the employee’s wages reported in Box 1 of Form W-2.
2. Under the Rate of Pay Safe Harbor, coverage is affordable if the employee’s Required Contribution is less than or equal to 9.96% of the monthly wage amount for hourly employees (the hourly rate multiplied by 130 hours), or the monthly salary for salaried employees.
3. Under the Federal Poverty Line Safe Harbor, coverage is affordable if an employee’s Required Contribution does not exceed 9.96% of the Federal Poverty Line for a single individual.
Please note that there are additional factors, such as health flex contributions and cash in lieu, that can greatly impact the amount of an employee’s Required Contribution and the affordability calculation. For more information about how to run the affordability calculation and whether you need to revise the employer contribution to maintain affordable offers of health coverage, please reach out to us.
IRS Increases ACA Employer Mandate Penalties for 2026.
The IRS has announced the adjusted 2026 penalty amounts for violations of the Affordable Care Act’s employer shared responsibility provisions (otherwise known as the “ACA Employer Mandate”). The ACA Employer Mandate authorizes the Internal Revenue Service (IRS) to assess a penalty on applicable large employers under one of the following two circumstances:
• Penalty A: The applicable large employer fails to offer “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage, and any full-time employee receives a subsidy for coverage through Covered California (26 U.S.C. section 4980H(a)(1)); or
• Penalty B: The applicable large employer offers coverage to full-time employees and their dependents that is “unaffordable” or does not offer “minimum value” and a full-time employee receives a subsidy for coverage through Covered California. (26 U.S.C. 4980H(b)(1).)
The amount of the penalties changes year-to-year. For plan years beginning after December 31, 2025, Penalty A will be $3,340 per year ($278.33 per month) multiplied by the number of full-time employees employed by the employer less 30. Penalty B will be $5,010 per year ($417.50 per month) multiplied by the number of full-time employees who obtain subsidized coverage through Covered
California. These penalty amounts for 2026 are higher than the amounts currently in place for 2025 ($2,900 per year for Penalty A and $4,350 per year for Penalty B).
Here are some examples of how Penalty A and Penalty B are calculated based on the penalty amounts for 2026:
Penalty A Example: If an applicable large employer has 200 full-time employees and fails to offer “substantially all” of its full-time employees and their dependents the opportunity to enroll in minimum essential coverage and at least one of those employees receives a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty A at $3,340 multiplied by 170 (200 minus 30 full-time employees), which is $567,800.
Penalty B Example: If an applicable large employer has 200 full-time employees and fails to offer coverage that that is affordable and provides “minimum value”, and 10 of those employees receive a subsidy for coverage through Covered California for 12 months, then the IRS could assess a Penalty B in the amount of $50,100 ($5,010 multiplied by 10 employees who obtain the subsidy).
While employers who intend to offer full-time employees and their dependents affordable minimum essential coverage hope to never face these penalties, it helps to be aware of the adjusted amounts year-to-year as part of staying up to date on the ACA. For more information, see IRS Revenue Procedure 2025-26.
Benefits Compliance Question.
Question: Should an employer keep requests for donated leave hours anonymous under a catastrophic leave donation program?
Answer: Yes, an employer should keep the identity of the employee who requests donated leave hours anonymous and keep the details of their medical emergency confidential. Employers have a duty to keep an employee’s medical information confidential, including information about why an employee is out on medical leave. Additionally, keeping the requesting employee’s identity anonymous will help an employer defend against any potential discrimination or disparate treatment claims should an employee feel like they received fewer donated leave hours than other employees based on protected classification. IRS Rev Ruling 90-29 requires donating employees to donate leave hours to an employer-sponsored leave bank, rather than earmarking or designating donations to a particular employee. Since the donated leave
hours are placed into one big employer-run catastrophic leave bank, it creates a wall of separation to keep the recipient employee’s identity private.
LCW Benefits Best Practices Timeline.
Each month, LCW presents a monthly benefits timeline of best practices.
September
• Determine whether the IRS’s new affordability percentage of 9.96% for 2026 will affect whether you offer affordable minimum essential coverage.
• Review and prepare all documents for open enrollment. If you use a Section 125 cafeteria plan, ensure employees are signing salary reduction agreements during open enrollment.
Consortium Call Of The Month
Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.
Question: Answer:
A Community College District client asked LCW for clarification on classified manager retreat rights. The client is a non-merit district. They wanted to know whether classified administrators, who do not have contracts, would have displacement rights back into classified positions in the event of layoff or demotion. They mentioned that they had an employee who was originally hired into a classified position and held that position for many years, and then promoted to a classified manager position. They noted that their current CBA is silent on this issue.
A LCW attorney explained that yes, they would have rights to positions in the classified service (e.g., bumping rights). The employees are still part of the classified service as classified managers. If laid off as classified managers, they would have displacement rights based on seniority.
Liebert Cassidy Whitmore