Note: Our biweekly E-Updates provide briefings on action across the Administration, Congress, and U.S. Courts. EducationCounsel’s resources specifically related to the Administration’s executive actions are available by clicking here.

The information included in this publication occurred during the time period of August 6 2026, through September 3, 2026. Due to the Labor Day holiday earlier this week, EducationCounsel is publishing today and our next publication of E-Update will include information for this week.

Highlights:

• On August 7, the U.S. Department of Health and Human Services (HHS) published a Notice of Proposed Rulemaking (NPRM) that would rescind the current Head Start Program Performance Standards (HSPPS) in their entirety and replace them with a substantially shorter set of requirements.
• On August 14, the Federal Communications Commission (FCC) published in the Federal Register a NPRM and Further Notice of Proposed Rulemaking (FNPRM) to undertake a comprehensive review of the federal E-Rate program.
• On August 19, the U.S. Department of Education (USED) announced the next step in its effort to overhaul regulations governing higher education accreditors by issuing a NPRM that “publish[es] the agreed-upon regulations” (or consensus regulations) that emerged from the negotiated rulemaking process that took place earlier this year.
• On August 24, USED issued a NPRM that proposes several significant changes to the Education Department General Administrative Regulations (EDGAR), which govern USED’s competitive and formula grant programs.
• On September 2, President Trump signed into law a bipartisan Continuing Resolution (CR) that maintains federal funding through December 11, 2026.
• On September 3, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) announced a proposed new rule that would end federal tax-exempt status for any private schools that engage in racial discrimination.

Administration

White House:

White House Issues New Executive Orders Seeking to Limit Birthright Citizenship: On August 6, President Trump signed two Executive Orders (EOs) seeking to restrict access to birthright citizenship under the Fourteenth Amendment. The EOs come in the wake of the U.S. Supreme Court’s ruling in Trump v. Barbara that President Trump’s initial EO calling for the end of birthright citizenship was unconstitutional. The first of the new EOs, “Continuing to Protect the Meaning and Value of American Citizenship,” directs federal agencies to exclude from birthright citizenship certain categories of children despite being born in the U.S. to noncitizen parents. Among other categories, these would include the children of foreign government employees, individuals associated with designated terrorist groups, and people the Administration identifies as having attempted to seek citizenship through birth tourism or fraud. The EO appears to apply not only to children in these categories who are born after the EO’s issuance but also to children already born to non-citizen parents included in the EO’s reach. Plaintiffs in one of the lawsuits that successfully challenged the initial EO asked the court in that case to clarify that the U.S. Supreme Court’s ruling also invalidates this new attempt to exempt certain categories of children from the Constitution’s guarantee of birthright citizenship (see under the U.S. Courts section below for an update on the status of that request).
 
The second EO, “Ending Birth Tourism,” directs the U.S. Departments of State and Homeland Security to prevent foreign nationals from entering or allowing them to remain in the U.S. for the purpose of giving birth to obtain citizenship for the child. 

U.S. Department of Education (USED):

USED Proposes Major Revisions to its Grantmaking and Management Regulations (EDGAR): On August 24, USED issued a Notice of Proposed Rulemaking (NPRM) that proposes several significant changes to the Education Department General Administrative Regulations (EDGAR), which govern USED’s competitive and formula grant programs. The NPRM proposes to revise those regulations in several ways that advance the Administration’s policies and preferences, including greater control over grants and opposition to efforts to advance diversity, equity, and inclusion in education. Public comments on the NPRM can be submitted here through September 23. (USED’s proposal substantively overlaps with, but is procedurally distinct from, the U.S. Office of Management and Budget’s government-wide proposal to overhaul how funding agencies like USED make and manage grants and other forms of federal financial assistance.)
 
Because these changes could have major implications for federal funding across many USED programs, EducationCounsel has created an EDGAR Overview & FAQ that provides detailed summaries of key provisions and issues in USED’s EDGAR proposal, each of which warrants careful consideration by anyone considering submitting comments before USED finalizes its revisions. These include:
 

1. Making it Easier for USED to Terminate Grants it Disfavors: The NPRM provides USED with more discretion to suspend or terminate grants “for convenience” regardless of how the grantee is performing. Among other changes, the NPRM replaces language holding USED’s grantees responsible for their performance as grantees with an approach to qualifying for continued funding that would turn on remaining in good standing with USED’s and the Administration’s political and policy preferences. Given that policy and political preferences change within and across Administrations, this would inject new risk of grants being unexpectedly canceled mid-implementation. This additional instability and uncertainty would affect all grantees, but it could particularly disadvantage recipients that rely on federal funding for key purposes, including rural school districts, small non-profit organizations, and new federal grantees.
    
2. Requiring All Grantees to Comply with the President’s Executive Orders: The NPRM seeks to require formula-funded grantees, such as state departments of education and public school districts, to comply with all of the President’s EOs, just as EDGAR currently does of competitive grant awardees. But EOs do not have the force of law and, as federal courts have repeatedly held, they sometimes violate federal laws or the U.S. Constitution. Requiring all of USED’s grantees to comply with EOs thus introduces a level of legal uncertainty and risk that undermines the ability of states, school districts, and other recipients of federal education funding to responsibly plan and manage their grants.
    
3. Requiring Grantees’ Employment and Admissions Decisions to be Based on “Merit”: The NPRM adds requirements for all USED grantees to base any employment and admissions decisions under their grants solely on “merit,” without defining that term or explaining whether and how the new EDGAR language is consistent with or goes beyond existing federal antidiscrimination laws. An accompanying provision prohibits compelling “statement of belief in support or opposition to any political views” but does not explain what constitutes a “political view.” Given the vague language in these proposed provisions and the Administration’s track record of misrepresenting the current state of federal antidiscrimination law, these EDGAR revisions could be used to push all USED grantees to align their employment and admissions practices to an unknown legal standard subject to the Administration’s interpretation or risk losing their federal funding.
    
4. Prioritizing Grant Applicants that Lower their Indirect Cost Rates: The NPRM creates a new competitive grant priority that can be incorporated into any USED grant competition to provide bonus points to applicants that agree to lower their negotiated indirect cost rate in their grant proposal. In competitions that USED deploys this new priority, IHEs and other entities—especially research institutions that often have higher negotiated rates given their need for costly specialized facilities and equipment—may be forced to choose between the negotiated rates to which they are legally entitled or increasing their chance of winning a grant competition.
    
5. Advancing the Administration’s Priorities through Competitive Grant Scoring Criteria: The NPRM makes numerous changes to the menu of criteria that USED can choose from when designing the scoring rubrics for new grant competitions, with the overall effect of shifting the criteria—and thus the incentives for what the field proposes in their applications—toward the Administration’s policy preferences. Many of the revisions align with the Administration’s opposition to efforts to advance diversity, equity, and inclusion. Removing or revising scoring factors that currently incentivize these efforts could lead to a significant shift in who benefits from USED’s discretionary funds in the future.
   • Supplementing the EDGAR Overview & FAQ’s discussion of this topic is an Appendix that provides EducationCounsel’s redlined and annotated version of USED’s proposed revisions to EDGAR’s menu of scoring criteria for competitive grant programs.
      
6. Other Proposed Revisions of Note: The NPRM includes other revisions as well, including changes to how USED posts information about new grant competitions, the role of the What Works Clearinghouse in defining “strong,” “moderate,” and “promising” levels of evidence, and the ways that USED manages any frontloading of funds for multiyear grants.

 
USED Releases Guidance on Responsible Use of Education Technology in Classrooms: On August 20, USED released a Dear Colleague Letter (DCL) providing non-binding guidance to states, schools, teachers, families, and education technology companies on the responsible use of technology in classrooms. The guidance encourages decisionmakers to focus on “instructional value over recreational engagement” and to evaluate technology based on its impact on student outcomes rather than the amount of time students spend on screens. The DCL emphasizes that technology used in schools should have a clear educational purpose that is supported by evidence of effectiveness, with regular evaluation. The guidance asserts that states, districts, educators, and vendors share responsibility for ensuring that technology is implemented safely and in ways that advance meaningful learning outcomes. The DCL comes shortly after the Federal Communications Commission’s publication of an E-Rate rule (See below under the section on Federal Communications Commission’s actions) that raises several related questions, including about the value of technology in schools and its impact on student outcomes.
 
USED Issues Proposed Higher Education Accreditation Rules: On August 19, USED announced the next step in its effort to overhaul regulations governing higher education accreditors by issuing a Notice of Proposed Rulemaking (NPRM) that “publish[es] the agreed-upon regulations” (or consensus regulations) that emerged from the negotiated rulemaking process that took place earlier this year. In EducationCounsel’s May 29 Alert, we provided a detailed summary and analysis of those consensus regulations. Among other significant changes, the proposed approach would mean that prospective accreditors would face a much lower bar to initial recognition, which means schools will more easily be able to switch accreditors to avoid sanction or scrutiny. Once recognized, accreditors would then face several new federal requirements under the NPRM, including ones that open the door to federal government review of diversity, equity, and inclusion initiatives. Comments on the NPRM can be submitted through September 21. As we have previously noted, many of the changes in the proposed regulations appear to exceed the Higher Education Act’s statutory limits on USED authority over accreditation and raise concerns regarding the First Amendment rights of accreditors, postsecondary institutions, faculty, and students. 
 
USED Recommends Ending the American Bar Association’s Accreditation Recognition: On August 22, USED released a staff report recommending that the agency deny the American Bar Association’s (ABA) application to renew the accreditation recognition for its Council of the Section of Legal Education and Admissions to the Bar. The report points to several areas of noncompliance, particularly those related to keeping the ABA’s accreditation function independent from its trade association function. The report also takes issue with the ABA’s timeliness in suspending an accreditation standard related to diversity and inclusion in the wake of the U.S. Supreme Court’s 2023 decision in SFFA v. Harvard, noting that the ABA did not suspend the standard until February 2025. USED’s staff-level recommendation represents the first formal step in a process that could ultimately result in the ABA losing its status as a federally recognized accreditor. The next step is for the National Advisory Committee on Institutional Quality and Integrity (NACIQI) to review and make a recommendation on federal recognition, after which USED will make a final determination. 
 
Loss of USED recognition carries the consequence that ABA accreditation of a law school would no longer grant eligibility to disburse federal student aid funds like student loans. However, fewer than 10 law schools rely exclusively on ABA accreditation for such eligibility. All other ABA-accredited law schools are eligible to disburse student loans because of their institutional accreditation, which is not at issue here. In addition, ABA accreditation carries other benefits, because many legal jobs explicitly require graduation from an ABA-accredited law school and nearly all states currently require graduation from an ABA-accredited law school to sit for the bar exam.
 
USED Releases Update Outlining That Nearly Half of IHEs Haven’t Fully Submitted Required Student Outcomes Data: On August 11, USED released an update highlighting that more than 1,900 institutions have not reported or under-reported Financial Value Transparency and Gainful Employment (FVT/GE) data from the 2024 and 2025 reporting cycles. According to Inside Higher Education, the “newly released data shows that of more than 4,640 colleges and universities with programs eligible for funding, about 1,930 are either missing or have underreported some or all of the data they are required to provide under federal accountability rules. That’s about 42 percent of the institutions.” USED’s announcement noted that institutions that have not yet reported all required FVT/GE data for the 2024 and 2025 reporting cycles are now considered delinquent, and will have until January 15, 2027, to comply with the reporting requirements. Regarding the latest deadline from the Department, Inside Higher Education noted that Department officials say, after January 15, 2027, “incomplete or inaccurate submissions may raise concerns about an institution’s administrative capability to continue participating in the [federal student aid] programs.”
 
USED Seeks Input on Federal Student Aid (FSA)’s Fiscal Year 2026–2030 Draft Strategic Plan Goals and Objectives: On August 24, FSA announced that the office is seeking input from higher education stakeholders on its strategic plan goals and objectives that will guide the office’s priorities and performance over the next five years. These goals and objectives outline FSA’s roadmap for continuing to modernize federal student assistance programs and strengthen service to students, parents, borrowers, IHEs, and other financial partners. Specifically, the FSA strategic plan has four overarching goals, which include (1) ensuring aid delivery for every eligible student as a performance-based organization; (2) increasing student loan repayment by removing barriers for borrowers to repay their loans; (3) leveraging modern technology infrastructure to deliver aid; and (4) continuously strengthening a high-performing workforce. The deadline to submit comments to FSAstrategicplan@ed.gov is September 23.
 
Administration Announces USED (not U.S. Department of Labor) will Distribute Remaining FY26 ESSA Formula Funds: Despite the interagency agreement shifting most of the functions and funds of USED’s Office for Elementary and Secondary Education to the U.S. Department of Labor (DOL), the Administration recently confirmed that the remaining FY2026 formula funds under the Every Student Succeeds Act (ESSA) will be disbursed on October 1 via USED’s grant platform instead of through DOL’s. This decision for DOL not to distribute the funds mirrors a similar decision for the first tranche of formula funds that went out on July 1 via USED’s system. 
 
USED Approves Three More Ed-Flex Applications, Bringing Total to 25 States: On August 21, USED announced that it has approved Ed-Flex waivers for Arizona, Nevada, and South Carolina, which brings the total number of approved Ed-Flex states to 25. Ed-Flex authority allows state educational agencies (SEAs) to waive certain federal statutory and regulatory requirements for districts and schools without first seeking approval from USED. The full list of eligible (and ineligible) federal requirements that can be waived via Ed-Flex is available here. 
 
USED Approves Second Workforce Pell Grant Program: On August 19, USED announced that it has approved the second Workforce Pell Grant Program. The approved program is an 8-week Clinical Medical Assistant program offered at Ivy Tech Community College in Indiana. Eligible students can now use federal Pell Grant funds to enroll in short-term programs. In particular, Ivy Tech Community College’s program prepares participants for careers healthcare. Created by the One Big, Beautiful Bill Act (OBBBA), the Workforce Pell Grant program now allows federal Pell Grants to support short-term, job-focused training programs in high-demand fields. The Department conducted negotiated rulemaking to establish the regulatory framework for the Workforce Pell Grant program. The final rule implementing the program was published on May 18, and became effective on July 1. The first program approval was announced on August 4 for Iowa Central Community College.
 
USED Issues Guidance on School Discipline and Opens Investigations into Two School Districts: On August 18, USED’s Office for Civil Rights (OCR) released a Dear Colleague Letter (DCL) that asserts that certain school discipline practices violate the Equal Protection Clause and Title VI of the Civil Rights Act of 1964—including race-neutral efforts by school systems and institutions to improve policies and practices in response to evidence of unjustified, unnecessary disparities in their discipline data based on race, color, or national origin. Building on USED’s recent rescission of longstanding Title VI regulations that prohibited disparate impact discrimination on the basis of race, color, or national origin (see EducationCounsel’s July 23 Alert for more information), the new DCL states that consideration of racial impact in student discipline in any way constitutes impermissible race discrimination, except in exceedingly rare circumstances that pass the strict scrutiny legal test. This interpretation aligns with two of President Trump’s 2025 Executive Orders: “Restoring Equality of Opportunity and Meritocracy,” which called for eliminating any use by the federal government of the disparate impact standard, and “Reinstating Common Sense School Discipline Policies,” which previewed the new DCL by claiming that efforts to reduce disparate impact in school discipline are themselves a form of illegal racial discrimination. (See EducationCounsel’s April 25, 2025 Alert for more information on these EOs.)
 
It is likely that the Trump Administration’s recent actions and interpretations in this area will be subject to legal challenge and judicial decisions over time. For now, system and institutional leaders should review the DCL and their current discipline policies and practices and consult with legal counsel as needed, but the DCL does not itself change what is or is not lawful under Title VI or the Equal Protection Clause. In a concluding footnote, OCR reiterates this point, noting that “this guidance is an interpretive rule that does not determine anyone’s rights or obligations or have direct legal consequences. This guidance merely advises the public of the Department’s interpretation of the statutes and rules that it administers.” 
 
The DCL’s interpretation does put recipients of federal education funding—including early childhood, K–12, and postsecondary grantees—on notice that OCR’s current view is that it is unlawful not only to intentionally consider a student’s race in making discipline decisions. According to OCR, it is also often unlawful to take race-neutral efforts to improve school discipline practices in response to concerns about racial disparities. For example, among several statements about what violates Title VI in this context (see page 17 of the DCL in particular), OCR asserts that “a school’s decision to change its discipline policies with the purpose of avoiding or reducing racial disparities in discipline constitutes race discrimination.” OCR notes that “it is not race discrimination under Title VI for a school to design its discipline policies to ensure they are fair to all students regardless of race” while also asserting that the very same school would be acting illegally if it adopted those same fair policies if they do so after “evaluat[ing] the racial outcomes of their discipline policies and [making] decisions based on or because of those racial outcomes.”
 
Indeed, OCR paired the DCL with the announcement that it has opened two investigations related to school discipline practices. In Arkansas, OCR will focus on whether the Fayetteville School District impermissibly used restorative justice initiatives to help address discipline disparities for students of color. In Wisconsin, OCR will investigate allegations that Milwaukee Public Schools staff, by discussing how some disciplinary practices “reflect[ed] systemic ‘whiteness,’” were “seemingly encouraging school officials to consider race in disciplinary practices.” It is worth noting that allegations contained in complaints submitted to OCR have by definition not yet been investigated or independently verified by those offices’ investigators.
 

U.S. Department of Treasury: 

Treasury Proposes Rule to Strip Tax-Exempt Status from Private Schools on the Basis of Engaging in Racial Discrimination: On September 3, the U.S. Department of the Treasury and the Internal Revenue Service (IRS) announced a proposed new rule that would end federal tax-exempt status for any private schools that engage in racial discrimination. Schools would lose their 501(c)(3) status if they do not satisfy the following “nondiscrimination requirement” created by the NPRM: 
 
A private school is not operated exclusively for exempt purposes if it adopts, maintains, or enforces any policy or practice that discriminates on the basis of race, color, or national or ethnic origin in the administration of any educational policy, admissions policy, scholarship or loan program, athletic program, or other school-administered or school-supported program. For purposes of this section, discrimination on the basis of race, color, or national or ethnic origin includes any discrimination on the basis of race, color, or national or ethnic origin for any purpose. (Emphasis added.)
 
The rule would apply to private primary and secondary schools and institutions of higher education (IHE) and would take effect “with respect to the taxable year of any private school beginning after May 31, 2027.”
 
The introduction to the NPRM appears to assert that the Administration will apply the nondiscrimination requirement quoted above on the basis of the Administration’s policy preferences rather on legal grounds. Following a lengthy recounting of how federal law regarding discrimination in education has developed over time, the NPRM begins its “Explanation of Provisions” discussion by stating: 
 
These proposed regulations would provide that all forms of racial discrimination in education, regardless of the intent behind or the legality of such discrimination (for example, where such discrimination is defended as serving remedial or diversity-related objectives), are against a fundamental public policy of the United States and thus preclude a school’s exemption from Federal income tax under section 501(c)(3). In so doing, the proposed regulations would make clear that discriminating based on race, color, or national or ethnic origin for any purpose by a private school is contrary to a fundamental public policy of the United States. (Emphases added.)
 
It also lists the following as the sources for identifying the “fundamental public policy of the United States”:
 
This public policy is evidenced by antidiscrimination law such as the Equal Protection Clause of the Fourteenth Amendment, the Civil Rights Act of 1964, Supreme Court case law such as Brown to Runyon to Bob Jones to Students for Fair Admissions, and the actions taken by the Executive Branch to ensure racial nondiscrimination is instituted throughout the United States.
 
As examples of the “actions taken by the Executive Branch,” the NPRM refers to Executive Orders (EOs) including two of President Trump’s EOs that arguably go beyond the current state of antidiscrimination law. In other words, tax-exempt status under this proposed rule would be at least in part contingent on aligning with Presidential policies that do not otherwise carry the force of law.
 
Additionally, although the text of the proposed nondiscrimination requirement (quoted at the beginning of this summary) appears to mostly restate existing federal civil rights laws, there is an important exception. By including “for any purpose” at the end, the proposed rule does not appear to account for lawful race-conscious actions that institutions might take for a purpose that is a “compelling interest” under the legal strict scrutiny test applicable to racial classifications, such as remedying specific instances of racial discrimination. The 14th Amendment to the U.S. Constitution, as well as Titles VI and VII of the Civil Rights Act of 1964, sometimes require such actions. 
 
In sum, the NPRM appears to suggest that private schools can lose their tax-exempt status even if they are fully complying with federal law and relevant federal court decisions. If they take actions that the Administration disfavors, the schools may lose their status because the Administration considers them to be engaging in discrimination for purposes of this new rule. The NPRM also does not address the process the Administration will follow in making such determinations.
 
Comments can be submitted until November 3. There would likely be legal challenges to the rule if it is finalized in its current form. 
 
Treasury Proposes a Rule to Restrict Refundable Tax Credits for Undocumented Persons: On August 20, the Treasury Department announced it was issuing a proposed rule that would treat the refunded portions of the Earned Income Tax Credit (EITC), the child tax credit, the adoption tax credit, and the American Opportunity Tax Credit as “federal public benefits” for purposes of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), the federal law that generally restricts noncitizens who are not “qualified aliens” from receiving federal public benefits. (See EducationCounsel’s Deep Dive, Who Benefits?, for more information on the Administration’s PRWORA actions.) As a result, non-citizens who do not meet the definition of a qualified alien—including persons with Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), and asylum applicants with employment authorization—would be ineligible to receive refunds under these tax credits. The Treasury Department estimates that for tax year 2026, the rule would affect between 200,000–700,000 taxpayers.
 
A tax credit is refundable if, when the amount of the credit exceeds a taxpayer’s tax liability, the excess amount may be paid to the taxpayer as a refund. For example, if a taxpayer qualifies for a $3000 tax credit, but only owes $2000 in taxes, the federal government would refund the remaining $1000. Under Treasury’s proposed rule, an affected taxpayer could still use the tax credit to reduce tax liability, if eligible, but would be ineligible to receive a refund for the portion of the credit that exceeds tax liability.
 
Public comments on the rule can be submitted here through October 5. There will likely be legal challenges to the rule if it is finalized in its current form. 

Federal Communications Commission (FCC):

FCC Initiates Review of the E-Rate Program: On August 14, the Federal Communications Commission (FCC) published in the Federal Register a Notice of Proposed Rulemaking (NPRM) and Further Notice of Proposed Rulemaking (FNPRM) to undertake a comprehensive review of the federal E-Rate program. Rather than propose new legally binding rules, the FCC structured the NPRM around several questions it seeks responses to, including questions about (i) whether the FCC’s progress in ensuring affordable access to high-speed broadband to and within schools and libraries justifies scaling back or repurposing the program and its dedicated funding, (ii) what measures the FCC can take through administrative and eligibility determination levers to better protect children and limit the use of screens in schools, and (iii) whether the FCC’s current interpretation of the Children’s Internet Protection Act is the best reading of the statute. The FNPRM proposes specific changes focused on strengthening the E-Rate program’s integrity, such as by increasing oversight of external consultants working with eligible entities, and streamlining program administration through mechanisms such as amending competitive bidding requirements. Comments on both the NPRM and FNPRM are due on October 13. Commenters will then have until November 12 to post replies to others’ comments. 

U.S. Department of Health and Human Services (HHS):

HHS Proposes Major Revision to Head Start Program Performance Standards: On August 7, HHS published a Notice of Proposed Rulemaking (NPRM) that would rescind the current Head Start Program Performance Standards (HSPPS) in their entirety and replace them with a substantially shorter set of requirements. The NPRM, if finalized, would significantly change the Head Start program by eliminating most of the existing standards that prescribe how grantees must offer high-quality, comprehensive services to children and families across the nation. HHS’s proposal removes or significantly weakens many of the current requirements related to effective teaching and learning, teacher qualifications, developmental screenings, health and dental care, mental health care, maternal health, and parent governance, as well as tailored services for children with disabilities, children experiencing homelessness, dual language learners, and children in foster care. 
 
HHS argues that the proposed changes are necessary to reduce what it characterizes as burdensome requirements and to increase flexibility in the Head Start program. The Administration estimates that finalizing its proposal will result in up to 236,000 additional children served by reallocating an estimated $2.2 billion. There are no additional funds for Head Start assumed in HHS’s analysis of the impact of its proposal. Rather, these estimated savings would arise from the combination of a provision in the NPRM limiting administrative costs and from programs changing their delivery models to provide fewer services and supports given the removal of most federal standards. Chief among the projected cost-saving changes are fewer teachers in the classroom; larger group sizes; shorter program hours; reduced health, dental, and mental health care, home visits, and other services; and reduced administrative costs. 
 
EducationCounsel’s Deep Dive, Unpacking the Notice of Proposed Rulemaking to Overhaul the Head Start Program Performance Standards, provides background on the HSPPS, explains their legal foundation, summarizes the major changes proposed in the NPRM, and outlines next steps in the regulatory process. HHS is accepting public comments here through October 6, and the current HSPPS remain in effect unless and until a final rule is issued. In the meantime, Head Start programs should not change their program design or operating procedures in anticipation of regulatory changes
 
HHS hosts forum to address harms of screen use in children: On September 1, HHS hosted a Real Life Symposium bringing together leaders from technology, medicine, research, education, government, and advocacy groups to examine the harms of screen use in children and discuss actionable approaches to supporting healthier childhood development. The event was intended to build on the Surgeon General’s Warning on the Harms of Screen Use: An Advisory and Toolkit on How to Protect Children and Adolescents issued earlier this year, which outlines how factors such as age, content, design, purpose, and duration influence when screen engagement may be beneficial and when it may become harmful. During the convening, HHS Secretary Robert Kennedy, Jr. noted, “Our children get one childhood, and we cannot allow screens to replace the real-world experiences they need to grow and thrive.” As part of the symposium, HHS also announced that healthcare providers can now earn free accredited continuing education (CE) credits through the Office of the Surgeon General’s partnership with the American College of Preventive Medicine (ACPM), as well as introduced, “The Magic Tablet,” a new children’s book designed as a companion to the Surgeon General’s advisory on the harms of screen use.

U.S. Department of Justice (DOJ):

DOJ Issues Legal Opinion Finding that Some NSF Programs are Unconstitutional: On August 12, the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) issued a formal memorandum opinion in response to a request by the National Science Foundation (NSF) concluding that a number of grant programs authorized by Congress and implemented by NSF to support efforts to diversify STEM education are unconstitutional because of their race- or sex-based elements. OLC concluded that funds reserved for the affected programs could instead be used by NSF for other STEM education-related purposes. 
 
Specifically, OLC asserts that three NSF programs—the Improving Undergraduate STEM Education: Hispanic-Serving Institutions program, the Alliances for Graduate Education and the Professoriate program, and the Louis Stokes Alliances for Minority Participation program—are “unconstitutional in their entirety.” According to OLC, two other programs—Advanced Technological Education and the ADVANCE Program—contain unconstitutional criteria but can still be lawfully administered if NSF severs those criteria from the program’s design. OLC also reviewed and found constitutional four other programs: Tribal Colleges and Universities Program, Graduate Research Fellowship Program, Advancing Informal STEM Learning, and Robert Noyce Teacher Scholarship Program. 
 
Earlier this year, OLC issued a similar opinion regarding USED’s Minority-Serving Institutions (MSI) programs. Citing OLC’s conclusion, USED later announced it would shift MSI grant funds to a different program that does not require minimum racial/ethnic enrollment thresholds. NSF will likely take similar steps regarding the STEM education programs that OLC asserts are unconstitutional. (See EducationCounsel’s January 8 Alert for more information about OLC and its MSI letter; see EducationCounsel’s May 29 Alert for more on USED’s shifting of MSI funds.)
 
DOJ Continues to Challenge State Laws Providing In-State Tuition for Undocumented Students: On August 27, DOJ announced it has sued Arizona, New Mexico, Oregon, and Washington for providing in-state tuition and state financial aid to eligible undocumented students. Separately, on August 10, DOJ announced it has also sued New York, Connecticut, and Vermont for providing in-state tuition and state financial aid to eligible undocumented students. These actions brings the total number of states whose laws are being challenged to 21.
 
DOJ Releases Guidance with New Legal Interpretations Regarding Parental Consent for Surveys: On August 26, DOJ’s Student Privacy Policy Office (SPPO) issued a new Dear Colleague Letter (DCL) that provides the annual reminder to all districts of their obligations under the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Act (PPRA). Under PPRA, schools are required to obtain parents’ written consent before their minor student participates in any required survey, evaluation, or analysis that concerns one or more of the following eight protected areas: “Political affiliations or beliefs of the student or the student’s parent; Mental or psychological problems of the student or the student’s family; Sex behavior or attitudes; Illegal, anti-social, self-incriminating, or demeaning behavior; Critical appraisals of other individuals with whom respondents have close family relationships; Legally recognized privileged or analogous relationships, such as those of lawyers, physicians, and ministers; Religious practices, affiliations, or beliefs of the student or student’s parent; or, Income (other than that required by law to determine eligibility for participation in a program or for receiving financial assistance under such program).”
 
In line with the Administration’s focus on parents’ access to information about their children—especially information related to children’s gender identity—the DCL includes new interpretations of federal law and places a greater emphasis on a number of key areas:

• Most significantly, SPPO interprets any survey, evaluation, or analysis administered by a district employee to a student that touches on the eight protected topics above to be “required” and therefore subject to PPRA’s advance parental notification and written parental consent requirements. The DCL bases this “required” designation on the pressures a student may feel from an authority figure or peers to participate, whether or not they are actually required to do so by the district. 
• The DCL asserts that mental health screening tools that include “questions about [a student’s] emotional wellbeing, internalized distress, social interactions, and other indicators of psychological or mental states or conditions” also trigger PPRA’s advance notice and consent requirements. 
• Even though the requirements under PPRA have typically been interpreted to attach to USED-funded activities only, the DCL does not distinguish between surveys administered with federal funds and those that are not. Instead, SPPO is interpreting PPRA requirements to apply “whether or not a specific survey is exclusively or directly administered with Department funds.”
• The DCL places a greater emphasis on ensuring that parents receive notice of their rights than in past years, including sample methods that schools may use to disseminate this information. In particular, SPPO emphasizes the right of parents under PPRA to review curricula and other instructional materials upon request. The letter also raised concerns that “many LEAs may be denying parents the opportunity.” 

Congress:

Continuing Resolution (CR) Extends Federal Funding through December 11 and Blocks Office of Management and Budget (OMB)’s Proposed Federal Funds Rule for Period of CR: On September 2, President Trump signed into law a bipartisan CR that maintains federal funding through December 11, 2026. The bill passed the Senate 90–6 and the House 370–48. The CR provides Congress with more time to enact appropriations laws for FY2027. If they cannot do so before the CR expires, Congress could enact another CR or the federal government would shut down. 
 
Among other things, the CR prohibits OMB from issuing any final version of its proposal to overhaul the rules governing federal financial assistance until the CR expires on December 11. OMB’s proposed rule, summarized in EducationCounsel’s OMB Overview & FAQ,  garnered almost half a million public comments and is currently pending with OMB, which must still issue a final rule responding to the comments and setting a date in order for the rule to go into effect.

House:

House Energy and Commerce Subcommittees Advance Bills Expanding Parental Control over Kids’ Access to Social Media and Calling for a National Plan to Close the Digital Divide: On September 1, the House Energy and Commerce Subcommittee on Commerce, Manufacturing, and Trade advanced by voice vote to full Committee, H.R. 6488. Prior to advancing the bill, the Subcommittee adopted a substitute amendment to the bill renaming it to the Governing Underage Access and Requiring Data Consent In All Networks or GUARDIAN Act. According to Roll Call, the substitute amendment removed a ban on social media accounts for youth under age 16, which was in the underlying bill. However, the GUARDIAN Act (as advanced) will only allow social media platforms to process a child's personal data with a parent's consent and parents can take that consent back at any time. The amended bill will also allow parents to have their child’s account deleted, as well as allow them to download a full record of the child’s data. The bill, as amended by the substitute amendment, passed the Subcommittee over the objections of Subcommittee Democrats. In opposing H.R. 6488, House Energy and Commerce Ranking Member Frank Pallone Jr. (D-NJ) said, the bill “directly contradicts the bipartisan KIDS Act.” Earlier this year, H.R. 7577, the Kids Internet and Digital Safety (KIDS) Act passed the House after a bipartisan agreement was reached on the kids online safety package between House Energy and Commerce Committee Chair Brett Guthrie (R-KY) and Ranking Member Pallone.
 
Separately, the House Energy and Commerce Subcommittee on Communications and Technology advanced by voice vote to full Committee, H.R. 2805, the PLAN for Broadband Act, which directs the Assistant Secretary of Commerce for Communications and Information to develop a National Strategy to Close the Digital Divide within one year of enactment of the bill. The bill is sponsored by House Education and Workforce Committee Chair Tim Walberg (R-MI) and has bipartisan support.
 
Ranking Member Scott Calls for Oversight of Funding Cuts at Federal Statistical Agencies: On August 13, House Education and Workforce Committee Ranking Member Bobby Scott (D-VA) released a letter sent to Committee Chair Tim Walberg (R-MI) urging him to conduct an oversight hearing on funding reductions and staffing losses at several federal statistical agencies, including the National Center for Education Statistics (NCES), Bureau of Labor Statistics (BLS), and Economic Research Service (ERS). Citing a recent American Statistical Association report, Scott argued that budget constraints and workforce reductions have limited agencies’ capacity and ability to produce critical data and research. The letter highlights reports that NCES was left with only 12 staff and have paused or terminated several data collection and research efforts. In particular, the Ranking Member cites decreases in staffing that have led to the termination or pause of research, including on school crime and safety, teachers and principals, homeschooling and virtual education, and adults’ skills and competencies. Ranking Member Scott asserts these reductions also raise concerns about the accuracy and availability of education, labor, and economic data. In his letter, Ranking Member Scott requests an oversight hearing to be held in September, so that the Committee can understand the decrease in our nation’s federal statistical infrastructure and the effects of poorer data quality. 
 
House Education and Workforce Subcommittee Holds Hearing on State-Led Child Care Solutions: On September 1, the House Education and Workforce Subcommittee on Early Childhood, Elementary, and Secondary Education held a hearing titled, “Supporting Working Families: State-Led Child Care Solutions,” to examine state-level approaches to improving child care affordability, access, and supply. The Subcommittee heard from the following witnesses: Ms. Ryan Page, Director of Child Care, Iowa Department of Health and Human Services; Ms. Kate Shanks, Senior Vice President of Public Affairs, Kentucky Chamber of Commerce; Ms. Hanna Melnick, Senior Policy Advisor and Director of Early Learning Policy, Learning Policy Institute; and Ms. Jude White, Assistant Commissioner for Child Care and Community Service, Tennessee Department of Human Services.
 
Subcommittee Chair Kevin Kiley (R-CA) emphasized that child care is both a family and economic issue, describing it as the “workforce behind the workforce.” He argued that the federal government cannot solve the child care challenge alone and called for a combination of federal support, state investment, employer participation, and public-private partnerships. Kiley specifically pointed to Congress’ support for the Child Care and Development Block Grant (CCDBG), while arguing that federal policy should give states greater flexibility for federal dollars, reduce regulatory barriers, and encourage the development of solutions tailored to local communities. Republicans echoed Chair Kiley’s remarks, while generally highlighting the need for state flexibility, regulatory relief, employer involvement, and market-based approaches to increasing the supply of care.
 
Democrats, led by Subcommittee Ranking Member Suzanne Bonamici (D-OR), agreed that states and the private sector have an important role, but argued that increased federal investment is necessary to make state innovations work nationwide. Ranking Member Bonamici emphasized that child care remains unaffordable for families and that child care workers struggle with low wages and inadequate benefits. She also called for passage of H.R. 4418, the Child Care for Working Families Act, arguing that Congress should cap families’ child care costs, expand access to high-quality care, and invest in the child care workforce. 
 
Witnesses broadly discussed efforts to reduce regulatory burdens, encourage employer participation, address rural child care shortages, and prevent families from facing steep “benefits cliffs” as their incomes increase. Ms. Ryan Page, who is the Director of Child Care for Iowa Department of Health and Human Services, pointed to the success of creating public-private partnerships and workforce-focused initiatives as part of Iowa’s approach, including efforts to better connect employers and communities with available child care capacity.

U.S. Courts:

Unions Sue USED over New Graduate Loan Caps: On August 11, a coalition of unions representing public service and healthcare workers, including the American Federation of Teachers, filed a lawsuit challenging USED’s recent decision to exclude graduate programs for teachers and other public service professionals from the definition of “professional degree” programs, which allow students to access higher amounts of federal student loans under new caps enacted by the One Big Beautiful Bill Act (OBBBA). This lawsuit follows a similar challenge by a coalition of states that led USED to issue guidance expanding the list of qualifying professional degrees to some additional medically-related fields but that continued to exclude educators and others. (See EducationCounsel’s July 9 Alert for additional details on that suit and USED’s guidance issued in response.)
 
Court Blocks New Executive Order Restricting Birthright Citizenship: On September 2, the judge in the case that successfully challenged President Trump’s initial executive order (EO) attempting to end birthright citizenship issued a new preliminary injunction blocking the President’s second EO on this topic. As noted above under the section on White House actions, plaintiffs had asked the court to clarify that the U.S. Supreme Court’s recent ruling in Trump v. Barbara also invalidates this new attempt to exempt certain categories of children from the Constitution’s guarantee of birthright citizenship. In issuing the new injunction, the judge wrote: “The Supreme Court has spoken: Children in the certified class are ‘citizens at birth.’ Barbara is the law of the land. The President must follow it.”
 
Challenge to U.S. Department of Homeland Security (DHS) Final Rule Limiting International Student Visas: On August 18, a group of higher education organizations and labor unions filed a lawsuit seeking to block a new DHS rule that, among other things, limits F-1 student visas and J-1 exchange visitor visas to a maximum of four years (see EducationCounsel’s July 23 Alert for a summary of the rule). The lawsuit argues that the rule should be vacated because it is arbitrary and capricious and violates part of the Immigration and Nationality Act. Further, the plaintiffs argue that DHS failed to adequately respond to public comments objecting to the rule and offering less burdensome alternative solutions to DHS’s concerns with the current system. 
 
Upcoming Events (Congress & Administration):

• On September 15 at 10:00 a.m., the House Appropriations Subcommittee on Financial Services and General Government will hold an oversight hearing on the Economy Act. As background, the Economy Act has been cited by USED Secretary Linda McMahon as providing the authority for the Department to enter into Interagency Agreements (IAAs) with other federal agencies to administer the functions and funding for certain programs. Witnesses include: Shirley Jones, Managing Associate General Counsel for the U.S. Government Accountability Office, and Dominick Fiorentino, Analyst in Government Organization and Management for the Congressional Research Service. The hearing will be held in 2362-A Rayburn House Office Building and livestreamed here.
• On September 15 at 7:00 p.m., the National Telecommunications and Information Administration (NTIA) will hold a “Listening Session on Screen-Based Instruction in K-12 Schools.” The FCC has initiated a Notice of Proposed Rule Making (NPRM), which includes a public comment period, to examine whether the E-Rate program is serving the long-term interests of children. This session invites stakeholders to provide input into the NPRM process. More information and registration is here.
• On September 16 at 10:15 a.m., the House Education and Workforce Subcommittee on Higher Education and Workforce Development will hold a hearing titled, “Who Gets the Scholarship? How the Global Shift in College Sports Affects Americans.” Witnesses have not yet been announced. The hearing will be held in 2175 Rayburn House Office Building and livestreamed here.
• On September 23 and 24, the National Advisory Committee on Institutional Quality and Integrity (NACIQI) will hold a quarterly meeting. During the meeting, the Committee will conduct a review of applications for renewal of recognition submitted by six accrediting agencies, including the American Bar Association, Council of the Section of Legal Education and Admissions to the Bar. The Committee will also consider a compliance report submitted by one accrediting agency. More information is here.

 
Upcoming Events (Outside Organizations):

• On September 14 at 11:00 a.m., the National Center on Education and the Economy (NCEE) will host a webinar titled, “Thriving in a Complex World: PISA 2025 Results & Lessons for the U.S.” with Andreas Schleicher, OECD Director for Education and Skills. He who will present findings with a particular focus on what they mean for the United States. Then, NPR education journalist Cory Turner will moderate a panel conversation with NCEE experts exploring what the findings tell us about American education and where we go from here. More information and registration is here.
• On September 15 at 12:00 p.m., the American Enterprise Institute (AEI) will hold an event titled, “Inside Iowa’s Education Reform Agenda: A Conversation with Governor Kim Reynolds.” The conversation will be moderated by Frederick M. Hess, Director, Education Policy Studies, for AEI. More information and registration is here.
• On September 16 at 4:30 p.m., AEI will hold an event titled, “Restoring Trust in Higher Education: A Conversation with Yale University President Maurie McInnis.” The conversation will be moderated by Frederick M. Hess, Director, Education Policy Studies, for AEI. More information and registration is here.
• On September 21 at 3:00 p.m., AEI will hold an event titled, “The Science and Craft of Effective Teaching.” During the event, education psychologists Nidhi Sachdeva and Paul A. Kirschner will discuss their book, Becoming an Expert Teacher: Deliberate Practice for Effective Teaching, and research-backed principles of instruction into actionable advice for teachers, and they argue for the importance of consistent, purposeful practice in classroom instruction. More information and registration is here.

 
Publications (Congress & Administration):

• On August 6, the U.S. Government Accountability Office released a report titled, “Federal Student Loans: Education Could Better Coordinate with Servicers When Making Program Changes.” Among the findings in the report include that all four student loan servicers raised concerns about the number of clarifying questions they needed answered to implement program changes and that this sometimes resulted from a lack of clear up-front instruction from USED. The report recommends that USED create criteria for determining when to conduct early coordination with servicers. 
• On August 26, the U.S. Government Accountability Office released a report titled, “K-12 Education: Improved Oversight Could Help DOD Schools Better Support Students with Literacy and Math Skill Deficits.” Among the findings in the report include that in the 2024-2025 school year, about 10% of the K-12 students attending the Department of Defense Education Activity’s (DODEA) schools full-time received strategic instruction, which is short-term extra help provided in a small-group setting. It also found that the number of DODEA students with a “specific learning disability” (SLD) increased 29% from the 2018-2019 to the 2024-2025 school years.

 
Publications (Outside Organizations):

• On August 19, Bellwether released a report titled, “Agency in the Algorithm: How K-12 Districts and Advocacy Organizations Can Build Parent Voice on Artificial Intelligence.” Among the findings and recommendations in the report include the need to recognize the different starting points families are entering the AI conversation from, the need for parents to be provided concrete pathways to engage with the topic of AI in schools, and the need to provide parents with agency to shape schools’ AI decisions along with support for handling AI use at home.
• On August 25, The Century Foundation published a report titled, “Americans Are United Against the Tech Takeover of Public Schools.” Among the findings of the report include that technology in schools has become a serious concern for U.S. voters with 77% of them wanting government rules and standards for how schools use new technology, that 81% of voters say student academic performance is a major problem for public schools, as well as that 72% of voters worry about the federal government eliminating the right to free public education for all children.