The Confusion in Higher Ed Right Now “Knows No Bounds”

When he was mayor of Lexington, Ky., Jim Newberry worked closely with the University of Kentucky, Transylvania University and Bluegrass Community Technical College and came to understand how important the institutions were to the city. He built close relationships with the leaders at all three colleges and said he admires the broad mission of higher education institutions: to educate and train the next generation.

“That was the mission to which I wanted to devote the rest of my professional career when I left the mayor’s office,” Newberry said. In 2012, he refocused his law practice on the higher education sector, and he is currently a member of Steptoe and Johnson, where he is co-chair of the firm’s higher education team. He predominantly represents private, nonprofit, independent colleges, but also works with large R-1 institutions.

Inside Higher Ed recently reached out to Newberry over Zoom to hear how he is helping his clients navigate the uncertainty in federal regulations, what advice he’d give to college presidents who might want to speak out and why he took Project 2025 at its word. Excerpts of the conversation follow, edited for space and clarity.

Q: What are the biggest concerns you’re hearing from your clients right now?

A: Confusion, lack of information, uncertainty about what the future may hold, who they will be dealing with. It’s, in short, the fear of the unknown right now.

Q: Is that mostly fear around new regulations or about how to stay compliant with current regulations amid all the uncertainty?

A: The confusion right now knows no bounds, and a lot of that has to do with the fact that federal offices are being closed. People who were responsible for overseeing projects are no longer there, and so if you’re trying to resolve an issue with the Department of Education, it is very, very challenging.

Q: And so what are you able to tell your clients, if anything?

A: You just kind of throw your hands up. I had one client that wanted me to give them an estimate of the cost for the regulatory compliance component of a project they asked us to assess. I said, “I’ve got no idea what to tell you about that. And I don’t know when I will be in a position to give you an estimate about that.” So we really are looking for answers. Of course, we watch Inside Higher Ed and we watch the evening news reports about what’s going on at the department, and we’re trying to piece together some mosaic that would make some sense when you stand back and look at it. But right now, it’s very sketchy.

Q: Under previous administrations, compliance was incredibly burdensome for institutions. Do you have any sense of there being more, less or similar levels of regulatory obligations under the Trump administration?

A: I do have a sense it’s going to be less. The prior administration took a pretty aggressive approach when complaints were filed with them on some matter over which they had jurisdiction, and, typically, the inquiries that you would get from [the Office for Civil Rights] would go far beyond the one complaint that initiated the whole process.

If I had to bet right now, I would say we’ll see substantially less of those kinds of inquiries, and we may see fewer investigations being initiated with institutions just because the department doesn’t have the personnel to do them. And what investigations are initiated will probably take much longer to complete just because they don’t have the personnel to review the documents necessary to reach a conclusion. I mean, even before the new administration took office, OCR investigations seemingly took forever to resolve. And now, with half as many employees, you gotta think they’re gonna take twice as long in the future as they have in the past, just on the basis of the number of people who are available to do the work.

Q: You were one of the few people I spoke to who were certain the Trump administration was going to follow through on the Project 2025 mission to dismantle the Department of Education. Why were you so confident? And what else do you see in your crystal ball?

A: It just simply appeared to me that Donald Trump had developed a remarkable level of control over the Republicans in Congress, particularly when they went through the confirmation process. And he was able to get virtually everybody he wanted confirmed. It just struck me that if you could get some of those confirmations approved, it was quite likely there would be a fair degree of support within the Republican party to materially diminish the role of the Department of Education, if not abolish it altogether. Now, whether it actually ceases to exist remains to be seen, but it’s certainly going to be in a diminished capacity. I don’t think there’s any question at all about that now, and I suspect many of its functions will be transferred elsewhere.

With respect to the future, I don’t know that I’ve got any clairvoyant ability here, but all you had to do is look at Project 2025. I mean, that’s their playbook. It has been proven repeatedly that’s exactly what they are working from. And therefore, you ought to anticipate that there’s going to be a substantial effort made to materially change the way institutions are accredited. You ought to see a substantially greater role for state regulatory agencies who are involved in higher education. And FERPA is probably going to be on the list of things that get changed. Those are some things that I think one could glean from looking at the section of Project 2025 that deals with education. It’s a pretty aggressive agenda.

Q: I mean, the spectrum of ability and capacity at the state level to take on some of these responsibilities is enormous. Does that fill you with dread as a lawyer, having to get to grips with 50 different ways of doing things in 50 different regulatory environments?

A: Yes, that’s exactly what I anticipate is going to happen. And just as there’s a substantial degree of difference from one state to the next in terms of the existing ability, I suspect, even after we go through some wholesale change that would result in functions moving from the federal level to the state level, you’re still going to see a wide variety of regulatory standards and enforcement of those standards. That’s going to create a challenging new environment for a lot of folks in higher ed. And, you know, higher ed has been very much a national kind of industry, if you will. People could go basically from one state to the next and not notice a huge amount of change in terms of how the institution would operate. That’s going to be different if they follow through with all they’re talking about doing.

Q: We’re seeing this ping-pong effect happening right now where the federal government will say one thing or take an action and then a lawsuit challenging it will follow. It’s incredibly inefficient policymaking to begin with, but how confident are you that we’ll get any sort of resolution to a lot of these extrajudicial actions coming from the administration?

A: That’s a great question, and it is one that is going to require a lot of attention, especially in the next six months, because I would anticipate during that period there will be a few of these cases that will percolate up to the Supreme Court in some fashion or another. And I hope the Supreme Court will be able to provide some clarity that will then drive the decisions that are being made at the district court and in the various courts of appeals, because it’s just going to be all over the place, I’m afraid, with different judges and courts taking different positions. Ultimately, the nine people on the Supreme Court bench are going to have to sort through some of this. They will be very, very influential.

Q: Some legal scholars have declared a constitutional crisis in this country. Would you say that we are in one now?

A: The ultimate constitutional crisis is going to be what happens when the Supreme Court makes a decision in one of these cases. If the administration refuses to abide by a Supreme Court decision, we’ll be in a full-blown constitutional crisis. But we have some limited crises percolating right now. Orders from federal courts have traditionally been honored by whichever administration, whichever party may have been in power, and that does not appear to be the current case, and that’s a real concern.

Q: What’s your take on Columbia’s concession to the department?

A: I have a lot of empathy for the leadership on every campus right now, as they try to discern as best they can what the appropriate course of action is for their institution. There are some incredibly capable people serving these institutions, both on the boards of trustees and in senior administrative levels. There is no way I could understand all of the factors they are considering as they try to chart a course for their individual institutions. And I wouldn’t try to do that, because they’ve got a lot of responsibility. They’ve got a lot of stakeholders, many of whom are taking conflicting positions. And it’s a very challenging time for folks in leadership positions—and for their lawyers, too, I might add.

Q: I appreciate you won’t give an opinion about something you aren’t involved in, but what do you think the decision might mean for institutional autonomy and academic freedom in general?

A: When you have an institution as prominent as Columbia conceding to a lot of the demands that were made, it makes it very, very difficult for lesser institutions to contemplate a fight. That’s not to say they made the wrong decision, but it is to say that their decision will probably lead others to find ways to avoid a fight with the new administration, and that’s understandable. I mean, absent some set of circumstances, this administration is going to be there for almost four years. You gotta live with them, and getting involved in litigation is problematic. It is outrageously expensive for the institutions. And even if you win, you’ve got a regulator sitting there that’s not very happy about the outcome of that litigation who can make your life pretty complicated, if not miserable, for several years to come. So there’s substantial motivation for folks not to fight. And I recognize there are constituencies—students, faculty and others—who vehemently oppose anything less than a battle to the death. But presidents and boards have to consider the overall well-being of their institutions. I don’t envy that task.

Q: We’re hearing lots of calls for leaders to speak out and condemn what’s happening to the sector. What would you tell a client who is thinking about penning an op-ed for The Wall Street Journal defending higher education?

A: I’m generally an advocate of institutional neutrality on matters of public affairs, because I think campuses need to be places where competing ideas can be exchanged without the administration leaning on the scales one way or the other. This is a little different, though, in that these issues are really going to the heart of what our system of higher education is going to be in the future. I happen to think the people that know the most about that are folks that are sitting in administration buildings or in boardrooms these days, and their voices need to be heard in some fashion about what the implications some of the decisions that are being made have.

So there’s certainly an interest in speaking out. I think the art of this, though, is speaking out in such a way that the points are clearly made without there being a lot of vitriol in the op-ed piece. There are a lot of constituencies on campus that want every member of the Board of Trustees and the president to go the White House and spit in the face of everybody coming and going. I understand that. I don’t think that serves their institutional interests well, but I do think a calm and thoughtful, well-reasoned, well-documented argument about some of the policy options that are available and which ones are good and which ones are bad for higher education is an appropriate thing for folks in higher education to be talking about.

Q: Interesting that you bring up institutional neutrality, because that’s part of the reasoning some leaders have given for not speaking publicly about the situation. You’re saying this issue doesn’t fall under institutional neutrality for you.

A: I don’t think this does. If I were in Minnesota, let’s say, and a client had a strongly held point of view about whether or not we need to have Canada as our 51st state, I’d discourage an institution in Minnesota from expressing that. On the other hand, that same institution may well be serving the higher ed industry if it makes some points about why having accreditation done by regional accreditors, as opposed to 50 different state agencies, is better. Then I think that kind of thing would be an appropriate subject for their comments.