The Volokh Conspiracy
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Judge Temporarily Blocks Dep't of Education Release of Names of Individual Foreign Donors to U.S. Colleges
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. Since 2020, the Department has also collected the names of individual foreign donors while stating that it would not publish them. In June 2026, the Department reversed course, announcing that it would publish those 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.
The court granted a TRO against this 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. When an agency changes position, it must "display awareness that it is changing position" and give "good reasons for the new policy." Where the prior policy "has engendered serious reliance interests," the agency must account for 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. Plaintiff alleges that institutions and donors relied on those assurances in making and accepting 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." Defendants' explanation also appears internally inconsistent, characterizing publication as statutorily required, yet treating the withholding of addresses as a discretionary "policy matter."
The Department may ultimately be able to justify its 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."
Plaintiffs are also likely to show that they will "suffer irreparable harm unless preliminary relief is granted." 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."
Here, Defendants threaten to imminently publish the names of donors who have hitherto remained anonymous for every internet user to see in posterity. Once published, the information will likely never escape the public eye. Indeed, the disclosure may produce downstream harms to the safety of donors who live in politically repressive countries….
Finally, the balance of the equities and the public interest … also 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. By contrast, Defendants have not identified any serious harm they would suffer were this court to temporarily enjoin the impending 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. But even assuming Defendants are correct on the merits, they have withheld publication of the names of these donors since July. It is unclear what, if any, harm Defendants would suffer were publication delayed for a few more 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….
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):
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. These interests, to the extent applicable, are not absolute and must be weighed against compelling public 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. 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.
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.
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)). 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).
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. 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.
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). In those cases, the government interests involved were unrelated to national security and focused on protecting the associational rights of nonprofit 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. 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. These entities continue to provide gifts and enter contracts with domestic institutions, placing U.S.-funded critical research at significant risk.
Because no other government agency is statutorily compelled to collect comparable information from institutions, the national security benefits of providing for public inspection of the identities of qualifying foreign counterparties outweigh the associational and limited privacy interests of foreign nationals (natural and artificial persons) and their domestic counterparts.
Here is an excerpt from Section 117:
(a) Disclosure report. Whenever any institution [basically meaning higher education institution -EV] is owned or controlled by a foreign source or receives a gift from or enters into a contract with a foreign source, the value of which is $250,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign source within a calendar year, the institution shall file a disclosure report with the Secretary on January 31 or July 31, whichever is sooner.
(b) Contents of report. Each report to the Secretary required by this section shall contain …, the aggregate dollar amount of such gifts and contracts attributable to a particular country. The country to which a gift is attributable is the country of citizenship, or if unknown, the principal residence for a foreign source who is a natural person, and the country of incorporation, or if unknown, the principal place of business, for a foreign source which is a legal entity….
(c) Additional disclosures for restricted and conditional gifts. Notwithstanding the provisions of subsection (b), whenever any institution receives a restricted or conditional gift or contract from a foreign source, the institution shall disclose … the amount, the date, and a description of such conditions or restrictions. The report shall also disclose the country of citizenship, or if unknown, the principal residence for a foreign source which is a natural person, and the country of incorporation, or if unknown, the principal place of business for a foreign source which is a legal 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 (Jenner & Block LLP) represent the Association.
