As the Trump administration has issued a volley of executive orders and policy directives aimed at higher education over the past two months, the sector’s fight back has been led not by individual institutions — like often happened during his first term — but by its acronym-heavy associations.
One of the first legal challenges came about 48 hours after the administration announced that indirect-cost reimbursements from the National Institutes of Health would be capped at 15 percent. Various groups filed lawsuits: The first was from the Association of American Medical Colleges and related organizations. That was followed by another complaint from the Association of American Universities (AAU), the American Council on Education (ACE), the Association of Public and Land-Grant Universities (APLU), and a dozen institutions, which argued the policy was “flagrantly unlawful.” Within days, a federal judge issued a temporary restraining order nationwide.
That challenge was soon accompanied by vigorous rhetoric from ACE’s president, Ted Mitchell. Days after the lawsuit was filed, in opening remarks at ACE’s annual conference, Mitchell condemned Trump’s actions in unusually strong words. “The flurry of these threats,” he said, “were designed to cow us into silence. When we face threats, we will not cower.”
In recent days, the American Association of University Professors has also been active in countering the administration’s actions. The national association, three of its campus chapters, and the Middle East Studies Association filed a lawsuit on Tuesday seeking to thwart the Trump administration’s efforts to deport noncitizen students and professors who advocate for Palestinian rights and other political causes. On the same day, the association joined with the American Federation of Teachers in a separate suit against the administration, challenging its freezing of $400 million in research funding for Columbia University. And in February, the AAUP and the National Association of Diversity Officers in Higher Education teamed up against executive orders that sought to curb diversity, equity, and inclusion work.
To Todd Wolfson, president of the AAUP, doing so was a necessity. “It’s our job to protect our members and to protect their places of employment and their sector,” he said. “If somebody wants to argue with me that’s not the role of unions and associations, I’d love to hear it. But I think this is a fundamental duty of ours, if not the fundamental duty.”
The courtroom and the bully pulpit aren’t familiar battlegrounds for associations, which tend to work quietly, at “the nerdy policy level,” as Mitchell put it — negotiating the finer points of student-aid programs, for instance, in Washington meeting rooms. “That’s all stuff we were all trained to do. The new part is the public rhetoric,” he said. “We really do believe that unless that rhetoric is challenged, people will walk away with a very, very one-sided and, we think, wrong view of what higher education does in the world.”
For the foreseeable future, Mitchell said, he expects he and his colleagues will “play at both levels”: the policy-oriented and the rhetorical.
‘Tip of the Spear’
While it hasn’t been an explicitly articulated plan, the approach of letting associations take the lead seems to have settled into a kind of consensus, even as critics bemoan the relative silence of college presidents. “To the extent that there’s a collective strategy from the sector, it’s for the associations to be the tip of the spear in the sector’s response — to instigate much of the litigation, to take the fight directly to Congress and to the administration and to the courts, because individual institutions are more vulnerable,” said Brendan Cantwell, a professor of higher, adult, and lifelong education at Michigan State University.
National associations can offer campuses cover against what Cantwell called a “retaliatory” federal government. While any number of institutions could demonstrate they’d be harmed by the NIH indirect-funding cap, for example, “Who wants to stick their neck out and be the one to sue the government?” he said. (Not Columbia University, which capitulated to a list of demands from the Trump administration in hopes of restoring hundreds of millions of dollars in federal funding.)
During President Trump’s first administration, institutions were sometimes more willing to play prominent roles in lawsuits against executive orders, even those that didn’t take direct aim at higher ed. Notably, for example, the University of Washington, Washington State University, and the state’s two-year-college system provided declarations in a lawsuit filed by its state attorney general seeking a halt to an administration order barring citizens of seven majority-Muslim countries from entering the United States.
But in Trump’s second term, that strategy has been less prevalent, although a dozen universities did sign onto the ACE-AAU-APLU suit. Their involvement stemmed from the AAU’s request that each of its members prepare declarations of harm, explaining how their campuses would be affected by the NIH funding cap, said Sarah C. Mangelsdorf, president of the University of Rochester. After reviewing those declarations, the law firm Jenner & Block asked a subset of institutions, including Rochester, to consider becoming named plaintiffs. It was a request Mangelsdorf said she weighed carefully.
Ultimately, she decided, “We couldn’t just sit back and see what happens to us. It’s too important.”
“Maybe that was the wrong decision,” Mangelsdorf added. “But I have to think that if I don’t stand up for some of the things that research universities stand for, I don’t know why I’m president.” (Several other institutions that joined the lawsuit declined interviews with The Chronicle, instead forwarding February press releases announcing their decision to join.)
Most institutions and leaders — with few exceptions — have taken a quieter approach, as Marjorie Hass, president of the Council of Independent Colleges, wrote in Higher Ed Dive. “The relative lack of public statements is not a sign of cowardice as some have suggested,” Hass wrote. “It’s that many college presidents have rightly concluded that quiet resistance rather than public protest is a more effective strategy.”
Mitchell is sympathetic to that philosophy. “One of the roles of associations is to say things that our members can’t say individually,” he said. But even among associations, there are varying degrees of speaking out. An APLU spokesperson declined an interview request, citing the ongoing lawsuit; the AAU sent a statement from its president, Barbara R. Snyder, that read in part: “AAU’s role has always been to advocate for our member universities and to promote their education, research, and service missions. That has not changed.”
The associations have also differed in the focus of their legal challenges. For instance, in filing suit against the NIH indirect-cost cap, the ACE-AAU-APLU coalition defended higher ed’s research interests, a narrower and generally less controversial target than the AAUP has backed. That makes a degree of sense, said Cantwell, because organizations like ACE are “primarily representing the sector’s corporate interests, their financial interests, their interests in autonomy and independence, and their interests in survival.” The NIH policy marked a “very acute” threat to those financial interests. (A spokesman for ACE noted that it has also led an effort to call on the U.S. Department of Education to rescind its Feb. 14 Dear Colleague letter and had spoken out on other issues, “like the government’s troubling move to cancel federal grants and contracts with Columbia University without following well-established procedures and adhering to due process.”)
The AAUP, meanwhile, is both a union and a membership association and represents faculty members, not institutions, making it “much more responsive to the dispositions of faculty, particularly faculty who are active in the labor movement,” Cantwell said. That role allows it to pursue more socially oriented and politically charged issues.
New Norms
Associations can also marshal legal and financial resources that individual campuses alone may not be able to muster, providing a collective defense of their member associations, as ACE, the AAU, and the APLU did in uniting to challenge the NIH cuts.
Typically, associations are defendants in such cases, or file amicus briefs supporting institutions in cases like the Students for Fair Admissions suit. It’s far less common that associations act as plaintiffs, said Liliana M. Garces, a professor of educational leadership and policy at the University of Texas at Austin.
Being a forceful voice on behalf of institutions is also one of their obligations, said Erin Hennessy, executive vice president at TVP Communications and a former ACE executive. “I say to our clients all the time: You pay good money to these national organizations, and you should tap them.”
Hennessy says she sees some membership associations “stepping away from” usual practices. For example, she said, very few issued statements congratulating President Trump on his election in November, or Linda McMahon on being named Secretary of Education. “I think we need to take that old playbook that was built on a lot of these norms and niceties and set that aside and say, ‘When the very basic things that we do are being assailed, what, in this era, does advocacy on the federal level look like?’”
Associations can also offer informal support, Hennessy said, like hallway conversations at an annual conference or a listserv exchange about how to respond to the latest executive order. “Those informal things can often be just as important as the letter to the administration.”
Hennessy expects associations’ responses to continue to evolve in the coming months: “What we’re seeing this week probably won’t be what we’ll see in June, probably won’t be what we see in October.”
In the meantime, Mitchell, at ACE, is settling into a higher-profile role, albeit with some reluctance. “There’s no question that I have had to learn some new skills, and I have had to push myself in this. I can’t say that this is where I want to be,” he said. “But this is where we are.”
