On April 3, 2026, a federal judge stopped ACTS data collection at public colleges and universities in seventeen states.
That order will remain in place until a trial decides whether the Department of Education (ED) has the legal authority to collect ACTS data as currently implemented. The judge in the case indicated that ED clearly has the legal authority to collect data under ACTS. The issues with it are how poorly the Department of Education has administered the survey. as Judge Dennis Saylor writes, “The principal problem…lies not in the basic authority of NCES to collect, analyze, and make use of the data. Rather, it arises from the rushed and chaotic manner in which the ACTS was promulgated.” He describes the implementation of ACTS as a violation of the Administrative Procedure Act (APA) that “epitomizes arbitrary and capricious agency action” and ruled that the plaintiffs are “likely to succeed on the merits of their claim that the agency action was ‘arbitrary, capricious, an abuse of discretion, and not otherwise in accordance with the law.”
Exactly.
For what it’s worth, I discussed all the ways that ACTS was likely to be breaking the law here last September.
For now, the injunction only applies to public universities in the seventeen states where the attorneys general filed a suit. Given the timing, I would not expect any of those institutions to submit data this year, so when ACTS data are published there will be many millions of students left out of it.
A number of state associations representing private colleges have petitioned to be included in this case, and there will be a hearing on April 13 to consider that petition. If the judge rules in their favor, the Trump Administration will not be getting the data it wants from several prominent institutions, including Harvard, Yale, and Duke. It is hard to see how the logic of this order does not also apply to private institutions, since it is based on APA violations. In his order, Judge Saylor notes that the law is not entirely settled on whether courts have the right to make an injunction global, but that he is not dealing with that issue since the plaintiffs are only seeking relief for public universities and colleges in their states. Expect more private associations of colleges and universities petitioning to be included in the injunction.
Here are some of the more notable passages from order, Judge Dennis Saylor repeatedly calls out the ED’s handling of ACTS. Here is a sample of his remarks:
- On ED’s response to the comments received during the initial comment period: “Each response, in substance, then acknowledged the “concerns” (or “challenges” or “burdens”) of the institutions, but addressed those concerns in largely cursory fashion, much of which consisted of optimistic statements and assurances about future guidance.”
- On the failure to conduct a technical review panel before implementing ACTS: “To be clear, the law does not require a lengthy gestation period for every proposed change to the NCES surveys. Simply because in the past such changes involved a measured and collaborative process does not mean that NCES is legally required to engage in a similar process in every case. It is, however, relevant that NCES developed that process over the years in order to permit careful consideration of complex issues and to permit the relevant institutions sufficient time to adapt to new requirements—and that it discarded that process here solely in order to try to meet the 120-day deadline. That deadline was not driven by any exigency, by the complexity of the subject matter, or the burden imposed on the institutions; it was set in response to a presidential decree. Indeed, NCES expressly acknowledged that the only reason it did not use the TRP process was because of the President’s deadline.”
- On whether ED has the authority to implement ACTS: “It seems clear that NCES can lawfully collect the requested data….Whatever the flaws of the ACTS may be, its subject matter fits squarely within the authority granted by the statute.”
- On the real source of the problems with ACTS: “The 120-day deadline imposed by the President led directly to the failure of NCES to engage meaningfully with the institutions during the notice-and-comment process to address the multitude of problems presented by the new requirements. The manner in which NCES handled that process simply cannot be squared with the requirements of the APA—and, indeed, epitomizes arbitrary and capricious agency action….Presidential directives do not enable agencies to bypass those requirements.”
- On the future of the Department of Education: “Th[e]se problems are compounded by the fact that DOE is in the process of dismantling itself, and closing NCES, in response to another presidential directive….This is not a merely technical issue. The IPEDS process cannot be turned over to states and local communities; they have no authority…to conduct such surveys. Nor, for that matter, does any federal agency other than NCES.”
- On whether ACTS violates the Paperwork Reduction Act (PRA): “[The] plaintiffs’ argument is not that the record underlying the certification is insufficient to support the certification; instead, they contend that the ACTS survey did not i fact comply with the requirements of § 3506(c)(3).8 Evaluating that contention would exceed the proper scope of the Court’s review….Because the Court concludes that the PRA certification complied with the requirements…plaintiffs are not likely to succeed on their claim that the ACTS survey violates the APA for failing to comply with the PRA’s requirements.”
Here are the seventeen states where public universities and colleges no longer need to submit data for ACTS: Massachusetts, California, Maryland, Colorado, Connecticut, Delaware, Hawaii, Illinois, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.
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