During an evening session on Thursday, Judge Tanya Chutkan (D.D.C.) spoke about the case Ass’n of Am. Univ. v. U.S. Dep’t of Ed.:
Section 117 of the Higher Education Act obliges universities to file reports on gifts and contracts from foreign sources with the Department of Education, and those filings are made public. Beginning in 2020, the Department began collecting the names of individual foreign donors even though it said it would not publish them. In June 2026, the Department reversed course and announced that it would disclose those names. After releasing the names of 92 institutional donors, it established October 2, 2026 as the deadline to publish the entire donor roster.
The court issued a temporary restraining order against this disclosure:
First, AAU has demonstrated a substantial likelihood of prevailing on its claim that the June 2026 Publication Decision was arbitrary and capricious and thus violated the Administrative Procedure Act; the court need not resolve the other theories at this stage. When an agency shifts its position, it must acknowledge that it is changing course and provide solid grounds for the new policy. Where the prior policy has created meaningful reliance interests, the agency must take those into account.
For six years, across two information-collection requests, the defendants informed institutions in writing that donor names and addresses would not appear in the public disclosure report. The plaintiff contends that institutions and donors relied on those assurances when making or accepting gifts.
The sole justification offered by the defendants for the policy change is a claimed statutory duty to disclose: they assert, without detail, that “the statutory inspection requirement outweighs countervailing confidentiality interests.” The defense’s explanation also reads inconsistently, describing publication as a mandatory statutory requirement while treating the withholding of addresses as a discretionary “policy matter.”
The Department may ultimately justify its decision. But the current record indicates that AAU is likely to succeed in showing that the Department “entirely failed to consider an important aspect of the problem.”
Plaintiffs are also likely to show that they would suffer irreparable harm without preliminary relief. The very disclosure of confidential information, including personally identifying data, can constitute irreparable harm because once released, such information loses its confidential quality.
Here, the defendants plan to publish the donor names that until now have remained anonymous for everyone online to see indefinitely. Once disclosed, the information is likely to stay in the public domain. Indeed, the disclosure could create safety risks for donors living in politically repressive countries….
Finally, the balance of equities and the public interest also favor the plaintiffs. As noted earlier, publicizing the donors’ identities would permanently erode all privacy interests tied to their personal information, which has remained confidential to date. By contrast, the defendants have not shown any substantial harm they would suffer if a temporary injunction prevented the impending publication.
During the proceedings, defense counsel conceded that the only harm to the defendants would be a delay in carrying out what they contend is a statutory command. Yet even if the merits were sound, they have kept donor names unpublished since July. It is unclear what injury would result from delaying publication for a few more weeks….
Consequently, the court ORDERS that the defendants and their officers, agents, employees, and all others acting in concert with them are ENJOINED from publishing, disclosing, or otherwise making publicly available the names or other identifying information of foreign donors and contract counterparties reported by AAU’s member institutions under Section 117 of the Higher Education Act, to the extent such information has not previously been disclosed, and from taking any further steps to carry out the Department of Education’s recent decision to publish that information….
Below is a portion of the government’s June 2026 statement outlining its approach (though it emphasizes First Amendment issues, which Judge Chutkan did not address here, rather than the Administrative Procedure Act):
The Department acknowledges that non-U.S. persons retain certain constitutional rights within U.S. borders, and that higher-education institutions may have reasons for not disclosing their ties to foreign donors. Those interests, where applicable, are not absolute and must be weighed against compelling public interests.
In this case, the public interest at stake—the ability to scrutinize substantial foreign financial connections to U.S. colleges and universities, including research centers funded by taxpayer dollars involved in the development of critical and emerging technologies—is substantial and directly bears on national security considerations. Public access to the identities of qualifying foreign counterparties is essential for transparency and helps ensure the protection of the United States’ national interests.
Therefore, not only is disclosure statutorily required but it also serves national security interests to provide access to the identities of qualifying foreign nationals and entities that provide gifts to, or engage in contracts with, institutions of higher education; the Department’s ongoing collection and public release of this limited foreign counterparty information falls within, and does not exceed, its authority under Section 117.
Similarly, the constitutional right of association does not extend to counterstatutory concealment of foreign counterparty identities (or to protecting related personally identifiable information). Thus, the First Amendment cannot be used to hide the identities of qualifying foreign counterparties (even as the Department continues to withhold additional PII such as foreign counterparty addresses from disclosure).
Moreover, any rights enjoyed by individuals or corporate entities must be weighed against the compelling transparency mandates of Section 117 and related national-security initiatives that safeguard federally funded research. Consequently, collecting and publishing the identities of qualifying foreign donors and contractors who interact with higher education institutions is justified and falls within the Department’s authority under Section 117.
The Department also cites the Supreme Court’s rulings in Americans for Prosperity Foundation v. Bonta (2021) and First Choice Women’s Res. Ctrs., Inc. v. Davenport (2026). In those cases, government interests were not tied to national security and centered on protecting nonprofit organizations’ associational rights.
Section 117, however, addresses markedly different statutory concerns: the information collected often concerns foreign relationships that can have a direct and meaningful impact on national security. Some institutions have repeatedly disregarded warnings from U.S. agencies about funding from foreign entities on lists calling for heightened diligence, including entities linked to potential adversaries from Russia, China, and Iran. These entities continue to contribute gifts and enter into contracts with domestic institutions, putting at risk federally funded critical research.
Because no other government agency is statutorily compelled to collect comparable information from institutions, the national-security benefits of enabling public inspection of the identities of qualifying foreign counterparties outweigh the associational and limited privacy interests of foreign nationals (both natural and legal persons) and their domestic counterparts.
Here is an excerpt from Section 117:
(a) Disclosure report. Whenever a higher education institution is owned or controlled by a foreign source or receives a gift from or enters into a contract with a foreign source, with a value of $250,000 or more, considered in aggregate with all other gifts or contracts from that source within a calendar year, the institution must file a disclosure report with the Secretary on January 31 or July 31, whichever comes first.
(b) Contents of report. Each report filed under this section shall include the total amount of gifts and contracts attributable to a specific country. The country to which a gift is attributable corresponds to the citizenship country, or if unknown, the principal residence for a natural person, and the country of incorporation, or if unknown, the principal place of business, for a legal entity.
(c) Additional disclosures for restricted and conditional gifts. Notwithstanding subsection (b), when an institution receives a restricted or conditional gift or contract from a foreign source, the report must disclose the amount, the date, and a description of the conditions or restrictions. The report shall also disclose the country of citizenship, or if unknown, the principal residence for a natural person, and the country of incorporation, or if unknown, the principal place of business for a foreign entity.
{“[R]estricted or conditional gift or contract” means any endowment, gift, grant, contract, award, present, or property of any kind which includes provisions regarding—
(A) the employment, assignment, or termination of faculty;
(B) the establishment of departments, centers, research or lecture programs, or new faculty positions;
(C) the selection or admission of students; or
(D) the award of grants, loans, scholarships, fellowships, or other forms of financial aid restricted to students of a specified country, religion, sex, ethnic origin, or political opinion.}(e) Public inspection. All disclosure reports required by this section shall be public records open to inspection and copying during business hours….
Ishan Kharshedji Bhabha, Amanda Shafer Berman, Anjali Motgi, Elizabeth Henthorne, Lindsay C. Harrison, and Kara V. Brandeisky of Jenner & Block LLP represent the Association.
