Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Judge Tanya Chutkan (D.D.C.) Thursday evening in Ass'n of Am. Univ. v. U.S. Dep't of Ed.:
Section 117 of the Higher Education Act requires universities to report foreign gifts and contracts to the Department of Education, making those reports publicly available.
asserted
reports → require → Education
Since 2020, the Department has also collected the names of individual foreign donors while stating that it would not publish them.
asserted
it → collect → them
In June 2026, the Department reversed course, announcing that it would publish those names.
asserted
it → reverse → names
After initially publishing the names of 92 Institutional donors, it set October 2, 2026, as the date for publishing the names of all donors.
asserted
it → publish → donors
The court granted a TRO against this release:
asserted
court → grant → release
To start, AAU has shown a likelihood of success on its claim that the [June 2026] Publication Decision is arbitrary and capricious [and thus a violation of the Administrative Procedure Act]; the court need not reach its remaining claims at this stage.
uncertain
court → start → stage
When an agency changes position, it must "display awareness that it is changing position" and give "good reasons for the new policy."
asserted
it → change → policy
Where the prior policy "has engendered serious reliance interests," the agency must account for them.
asserted
agency → engender → them
For six years, across two information collection requests, Defendants told institutions—in writing—that it would not include donor names and addresses in the public disclosure report.
asserted
it → tell → report
Plaintiff alleges that institutions and donors relied on those assurances in making and accepting donations.
asserted
institutions → allege → donations
The only attempt at an explanation Defendants proffer for their policy change is an asserted statutory mandate to disclose: they state without elaboration that "the statutory inspection requirement outweighs countervailing confidentiality interests."
asserted
requirement → proffer → interests
Defendants' explanation also appears internally inconsistent, characterizing publication as statutorily required, yet treating the withholding of addresses as a discretionary "policy matter."
asserted
explanation → appear → matter
The Department may ultimately be able to justify its decision.
uncertain
Department → justify → decision
But the present record shows that AAU is likely to succeed in establishing that the Department "entirely failed to consider an important aspect of the problem."
asserted
Department → show → problem
Plaintiffs are also likely to show that they will "suffer irreparable harm unless preliminary relief is granted."
asserted
relief → show → harm
By its very nature, the disclosure of confidential information, including personally identifying information, may constitute irreparable harm "because such information, once disclosed, loses its confidential nature."
uncertain
information → include → nature
Here, Defendants threaten to imminently publish the names of donors who have hitherto remained anonymous for every internet user to see in posterity.
asserted
user → threaten → posterity
Once published, the information will likely never escape the public eye.
asserted
information → publish → eye
Indeed, the disclosure may produce downstream harms to the safety of donors who live in politically repressive countries….
uncertain
who → produce → countries
Finally, the balance of the equities and the public interest … also favor Plaintiffs.
asserted
balance → favor → Plaintiffs
As previously discussed, the publication of the donors' identities would irreversibly eviscerate all privacy interests they maintain in their personal information, which, to date, has remained confidential.
asserted
which → discuss → date
By contrast, Defendants have not identified any serious harm they would suffer were this court to temporarily enjoin the impending publication.
asserted
court → identify → publication
During the hearing, Defendants' counsel conceded that the only prejudice Defendants would suffer is a delay in their ability to execute a purported statutory command.
asserted
Defendants → concede → command
But even assuming Defendants are correct on the merits, they have withheld publication of the names of these donors since July.
asserted
they → assume → July
It is unclear what, if any, harm Defendants would suffer were publication delayed for a few more weeks….
uncertain
publication → suffer → weeks
Defendants and their officers, agents, employees, and all persons acting in concert with them are hereby ENJOINED from publishing, disclosing, or otherwise making publicly available, the names or any other identifying information of foreign donors and contract counter-parties that was reported by AAU's member institutions under Section 117 of the Higher Education Actand that has not previously been publicly disclosed, and from taking any other action to effectuate the Department of Education's recent decision to publish that information….
asserted
that → act → information
Here is an excerpt from the government's June 2026 statement explaining its plans (though they focus more on the First Amendment issues, which Judge Chutkan didn't reach, rather than the Administrative Procedure Act):
asserted
Chutkan → explain → Act
The Department acknowledges that non-U.S. persons retain certain constitutional rights within U.S. borders, and that institutions of higher education may have interests in not disclosing their associations with foreign donors.
uncertain
institutions → acknowledge → donors
These interests, to the extent applicable, are not absolute and must be weighed against compelling public interests.
asserted
interests → weigh → interests
In this case, the public interest at stake—the ability to examine substantial foreign financial ties with domestic institutions of higher education, including research institutions involved in the taxpayer-funded development of critical and emerging technologies—is substantial and directly affects U.S. national security considerations.
asserted
interest → examine → considerations
Public access to the identities of qualifying foreign counterparties is essential to transparency and helps ensure that the national interests of the United States are protected.
asserted
interests → qualify → States
Accordingly, it is not only statutorily required but also in the best interests of the United States' national security to provide access to the identities of qualifying foreign nationals and entities that provide gifts to, or enter into contracts with, institutions of higher education and the Department's ongoing collection and public release of this limited foreign counterparty information falls within, and does not exceed, the Department's authority under Section 117.
asserted
collection → require → Section
Similarly, the constitutional right of association does not extend to include the counterstatutory concealment of foreign counterparty identities (or even protection of associated personally identifiable information (PII)).
asserted
right → extend → information
Therefore, the First Amendment cannot be used to conceal the identities of qualifying foreign counterparties (even as the Department continues to withhold additional PII such as foreign counterparty addresses from disclosure).
asserted
Department → use → disclosure
Furthermore, any rights of natural persons or artificial persons (e.g., foreign corporations or other entities) must be balanced against the compelling transparency mandates of Section 117 and related national security initiatives protecting the taxpayer-funded Federal research enterprise.
asserted
rights → balance → enterprise
Therefore, the collection and publication of qualifying foreign donor and contractor identities who provide gifts to, or enter contracts with, institutions of higher education are justified and within the Department's authority under Section 117.
asserted
who → qualify → Section
The Department also recognizes the Supreme Court's decisions in Americans for Prosperity Foundation v. Bonta (2021), and First Choice Women's Res. Ctrs., Inc. v. Davenport (2026).
asserted
Department → recognize → Davenport
In those cases, the government interests involved were unrelated to national security and focused on protecting the associational rights of nonprofit organizations.
asserted
interests → involve → organizations
Section 117 involves very different statutory concerns: the information collected often involves foreign relationships that may have a direct and significant impact on national security.
uncertain
that → involve → security
Some institutions have repeatedly disregarded warnings from U.S. government agencies about funding from foreign entities of concern that appear on various U.S. government lists indicating the need for heightened diligence by institutions, including entities associated with potentially adversarial entities from Russia, China, and Iran.
asserted
that → disregard → Russia
…and 9 more, not listed.
The Aporia
