Commonwealth of Massachusetts et al v. Department of Education et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
COMMONWEALTH OF 	)
MASSACHUSETTS, et al., 	)
)
Plaintiffs, 	)
) 	Civil Action No.
v. 	) 	26-11229-FDS
)
DEPARTMENT OF EDUCATION, et al., 	)
)
Defendants. 	)
_______________________________________)
MEMORANDUM AND ORDER ON PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION
SAYLOR, J.
This matter involves a challenge to a new requirement promulgated by the United States
Department of Education—the Admissions and Consumer Transparency Supplement
(“ACTS”)—that compels colleges and universities to disclose certain data concerning student
admissions. Plaintiffs are 17 states, including Massachusetts, with public university systems that
participate in federal student financial aid programs.
In substance, the ACTS mandates detailed reporting of admissions data—including
information concerning race, ethnicity, gender, family income, parental education, and other
demographic factors, as well as admission test scores and grade point averages—for all
applicants, admitted students, and enrolled students, at both the undergraduate and graduate
level, both currently and for the preceding six years. Plaintiffs seek to enjoin or stay the
application of the ACTS on the ground that it violates the Administrative Procedure Act, 5
U.S.C. § 706(2).
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The Department of Education, through the National Center for Education Statistics
(”NCES”), has been collecting admissions data from colleges and universities for many years.
Title IV of the Higher Education Act, which authorizes federal student financial aid programs,
requires participating institutions to “complete surveys conducted as a part of the Integrated
Postsecondary Education Data System” (“IPEDS”). 20 U.S.C. § 1094(a)(17). Historically, there
have been thirteen such surveys, covering a variety of different topics, including not only
admissions, but such matters as enrollment, graduation rates, and financial aid. In order to
ensure consistency and fairness, reduce undue burden on the institutions, and maintain student
privacy, DOE has developed a comprehensive process to review and implement proposed
amendments to the surveys that includes collaborative efforts with all stakeholders, including the
use of Technical Review Panels (“TRPs”).
On August 7, 2025, President Trump issued a memorandum directing the Secretary of
Education to expand the scope of the IPEDS to track the “consideration of race in higher
education admission” to ensure compliance with the Supreme Court’s decision in Students for
Fair Admission, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023). (Dkt.
No. 69-6). Critically, that memorandum directed her to do so within 120 days. The same day,
DOE Secretary Linda McMahon issued a memorandum to the Acting Commissioner of NCES
directing him to collect certain types of data within the 120-day timeline. (Dkt. No. 69-7).
Eight days later, on August 15, NCES published, and requested comment on, the ACTS.
The August 15 posting did not include the actual ACTS survey, but only a generalized
description of the information that would be added to the IPEDS.
NCES received more than 3,400 comments in response to the August 15 request. Among
other things, multiple commenters expressed concerns about the implementation of the survey in
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a highly compressed time frame, given the magnitude of the new reporting requirements; the
likelihood of impaired data quality, due among other reasons to lack of standardization of data
elements; the increased administrative burden on responders; the lack of clear and practical
guidance, including data definitions; the apparent failure to consider how to protect student
privacy with disaggregated data reporting; the unavailability or inaccessibility of data necessary
to comply with the requirement of retroactive responses; the challenges concerning the demand
for data, particularly as to graduate schools, that is possessed only in a decentralized manner; and
the likelihood of operational disruptions, particularly for smaller schools with limited resources.
In October 2025, NCES responded to each of those eight substantive categories of
comments. (Dkt. No. 9-2). In each instance, it began by stating, using identical language, that
the ACTS proposal was developed in direct response to President Trump’s memorandum,
including the 120-day deadline. (Id. at 13-22). 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.
Thus, for example, in response to concerns about the short implementation timeline,
NCES stated that it “recognizes the challenges,” but that “the timeline has been specified by the
Presidential Memorandum and Secretarial Directive.” (Id. at 13). It expressed “confidence” that
the institutions “can provide the high-quality data required by the ACTS components” and that it
is “similarly confident in the operational success of the ACTS collection.” (Id.).
The response of NCES to concerns about the failure to employ the TRP process is
particularly instructive. It acknowledged that “historically” it had made use of TRPs to ensure
clear definitions and instructions for data collection. (Id. at 17). It added, however, that “[i]n
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light of the timeline established [by the President], the feasibility of an ACTS-related IPEDS
TRP was deemed infeasible.” (Id. at 17-18).
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.
In any event, on November 13, 2025, NCES posted a submission to the Office of
Management and Budget for review and approval and a further request for comment on the
ACTS survey component. The only significant change was that the November request proposed
exempting four-year institutions that accepted all applicants and do not award need-based aid.
The comment period for the November request closed on December 15, 2025. OMB then
approved the ACTS survey. On December 18, NCES commenced the opening of the survey,
with submissions for most institutions due on March 18, 2026. Even then, the survey was not
finalized; NCES materially changed the templates on January 26, 2026, and changed them again
on February 17, 2026.
This lawsuit was then filed on March 6, 2026, seeking preliminary and permanent
injunctive relief. The complaint asserts three claims under the Administrative Procedure Act, 5
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U.S.C. § 706(2): first, that the agency exceeded its statutory authority in adopting the ACTS;
second, that the agency did not observe procedures required by law, because it failed to follow
the requirements of the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., and the E-
Government Act of 2002; and third, that the agency action was “arbitrary, capricious, an abuse of
discretion, and otherwise not in accordance with law” within the meaning of § 706(2)(A).
Count 1 asserts that the survey itself is outside the statutory authority of NCES, and
therefore illegal. But at least at a general level, it seems clear that NCES can lawfully collect the
requested data. The statute grants it authority to collect, analyze, and report “information by
gender, race, ethnicity, socioeconomic status . . . and other population characteristics,” and to do
so “when such disaggregated information will facilitate educational and policy decisionmaking.”
20 U.S.C. § 9543(a)(3). Indeed, NCES has collected such data for years. One of the principal
purposes of collecting and analyzing information about race, ethnicity, and similar demographics
is to ascertain whether there are potentially troublesome anomalies or patterns that suggest the
possibility of unlawful discrimination. Whatever the flaws of the ACTS may be, its subject
matter fits squarely within the authority granted by the statute.
Nor is there any obvious reason to restrict the purposes for which the information can be
used in order to prohibit referrals for investigation or enforcement. The statute authorizes the
collection, analysis, and “reporting” of disaggregated data when it would “facilitate educational
and policy decisionmaking.” Id. The facilitation of educational decisionmaking necessarily
includes identifying potential problems (such as patterns of discrimination). And if the data
received from a particular institution seems to suggest possible illegal discrimination on the basis
of race, surely NCES is not precluded from taking appropriate action in response.
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The principal problem, then, 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. 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.
Those problems are compounded by the fact that DOE is in the process of dismantling
itself, and closing NCES, in response to another presidential directive. On March 25, 2025,
President Trump directed that Secretary McMahon, “to the maximum extent appropriate and
permitted by law, take all necessary steps to facilitate the closure of the Department of Education
and return authority over education to the States and local communities.” Exec. Order No.
14242 § 2(a), 90 Fed. Reg. 13679, 13679 (Mar. 25, 2025).
Since that announcement, the number of DOE employees has been radically reduced.
The parties dispute how those cuts have affected NCES; according to plaintiffs, the number of
employees has been cut from approximately 100 to only 3, whereas the government contends
that there are 13 employees remaining, and that “all of the data collection and processing” is
being handled by private contractors. (Def.’s Suppl. Opp’n 3, Dkt. No. 99). But the government
is conspicuously silent on the subject of how the surveys, and the data collected by those
surveys, will be handled once NCES no longer exists or what the timetable is for its elimination.
This is not a merely technical issue. The IPEDS process cannot be turned over to states
and local communities; they have no authority under 20 U.S.C. § 9543(a)(3) to conduct such
surveys. Nor, for that matter, does any federal agency other than NCES. Once NCES no longer
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exists, the authority for ACTS vanishes—and with it the authority both to “collect” data and to
“analyze” data collected from prior surveys. Whether and where that data will continue to exist,
and who will have access to it, is entirely unclear.
During the notice-and-comment process, in response to concerns about the reductions in
force and the eventual dismantling of the department, NCES simply stated that “NCES and its
IPEDS contractor have confidence in their joint capacity to collect, validate, and report the
ACTS data.” (Dkt. No. 69-17, at 24). In response to the concern that “sufficient technical
assistance will not be available to support institutions as they complete ACTS,” NCES asserted
that “[t]he IPEDS Helpdesk is available and prepared to respond to inquiries from institutions in
all phases of collection.” (Id.). At the very least, the fact that NCES simultaneously expressed a
willingness to work with institutions on an ongoing basis to provide guidance, while failing to
address the fact that it intended to cease operations as soon as “permitted by law,” is further
evidence that the promulgation of the ACTS was arbitrary and capricious.
In short, and for the reasons set forth below, plaintiffs have established, based on the
record before the Court, that they 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.” See 5 U.S.C. § 706(2)(A). Furthermore, and notwithstanding the contention of
the government, plaintiffs have established that immediate irreparable harm will result if the
injunction does not issue. And they have likewise established that the balance of equities and the
public interest favor preliminary injunctive relief. Accordingly, the motion for a preliminary
injunction will be granted.
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I. 	Background
A. 	Factual Background
1. 	Integrated Postsecondary Education Data System (“IPEDS”)
Title IV of the Higher Education Act authorizes federal student financial aid programs for
eligible colleges, universities, and technical and vocational schools. See 20 U.S.C. §§ 1070, et
seq. Institutions that participate in the programs must meet certain conditions. As relevant here,
they must “complete surveys conducted as a part of the Integrated Postsecondary Education Data
System” (“IPEDS”). 20 U.S.C. § 1094(a)(17); see also 34 C.F.R. § 668.14(b)(19). Failing to
submit the required data “in a timely manner and to the satisfaction of the Secretary” of
Education risks fines and the loss of Title IV eligibility. 20 U.S.C. § 1094(a)(17); see 34 C.F.R.
§§ 668.84; 668.85 & 668.86.1
IPEDS is a series of interrelated surveys administered annually through the National
Center for Education Statistics (“NCES”), a component of the Institute for Education Sciences
(“IES”). (Compl. ¶¶ 1, 36, 37, Dkt. No. 1). IES is the statistics, research, and evaluation arm of
the Department of Education. (Id. ¶ 36). Its mission is “to provide parents, educators, students,
researchers, policymakers, and the general public with reliable information” about education
programs and practices. 20 U.S.C. § 9511(b)(1). Congress tasked IES with “compil[ing]
statistics, develop[ing] products, and conduct[ing] research, evaluations, and wide dissemination
activities in areas of demonstrated national need.” Id. § 9511(b)(2). In doing so, it is required to
“ensure that such activities . . . conform to high standards of quality, integrity, and accuracy;
1 Specifically, federal regulation authorizes the Secretary to impose fines of up to $71,545 per violation. 34
C.F.R. § 668.84(a)(1).
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and . . . are objective, secular, neutral, and nonideological and are free of partisan political
influence and racial, cultural, gender, or regional bias.” Id.
NCES is one of the four National Education Centers of IES. See id. § 9511(c)(3)(B). It
is also DOE’s primary statistical agency. (Compl. ¶ 37). Its statutory mission includes
“collect[ing], analyze[ing], and report[ing] education information and statistics in a manner
that . . . is objective, secular, neutral, and nonideological and is free of partisan political influence
and racial, cultural, gender, or regional bias; and . . . is relevant and useful to practitioners,
researchers, policymakers, and the public.” Id. § 9541(b)(3). Among its specific statutory duties
are “collecting, analyzing, cross-tabulating, and reporting, to the extent feasible, information by
gender, race, ethnicity, socioeconomic status, limited English proficiency, mobility, disability,
urban, rural, [and] suburban districts, and other population characteristics, when such
disaggregated information will facilitate educational and policy decisionmaking.” 20 U.S.C.
§ 9543(a)(3).
Before December 2025, IPEDS consisted of thirteen surveys, covering topics such as
enrollment, academic libraries, admissions, degree completion, financial information of the
institution, graduation rates, human resources information, institutional characteristics, outcome
measures, and student financial aid. (Compl. ¶ 39). Those surveys have never included
retroactive data—that is, data from previous academic years. (Id.. ¶¶ 6, 48).
For the most part, those surveys remained the same from year to year. (Id. ¶ 40). Since
at least 2002, NCES has implemented major changes through a deliberate, multistep process.
(Id. ¶ 91). That included review by Technical Review Panels (“TRPs”) to ensure data quality
and consistency, stakeholder collaboration, and posting the survey during the initial notice-and-
comment period. (Id. ¶¶ 91, 93-97). Institutions also had a year of notice before new survey
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components were mandated, and such changes were often preceded by an optional or preview
year. (Id. ¶ 97).
2. 	Presidential Memorandum and Secretary McMahon Directive
On August 7, 2025, President Trump issued a presidential memorandum entitled
Ensuring Transparency in Higher Education Admissions. (Dkt. No. 69-6). It directed the
Secretary of Education to, “[w]ithin 120 days . . . , and to be initiated this 2025-2026 school
year,” expand the scope of IPEDS to track the “consideration of race in higher education
admissions” and ensure compliance with Students for Fair Admissions, Inc. v. President &
Fellows of Harvard College, 600 U.S. 181 (2023). (Id.). He also directed the Secretary to
“increase accuracy checks” and “take remedial action . . . if institutions fail to submit data in a
timely manner or are found to have submitted incomplete or inaccurate data.” (Id.).
That same day, Secretary of Education Linda McMahon issued a memorandum to
Matthew Soldner, the Acting Director of IES and Acting Commissioner of NCES.
Memorandum from Sec’y McMahon to Acting Dir. Matthew Soldner on Ensuring Transparency
in Higher Education Admissions (Aug. 7, 2025), https://perma.cc/7KDJ-C79N (“McMahon
Mem.”). She “direct[ed] NCES to . . . collect data disaggregated by race and sex relating to the
applicant pool, admitted cohort, and enrolled cohort at the undergraduate level, and for specific
graduate and professional programs” within the “120-day timeline contained in the Presidential
Memorandum. (Id. at 2). She also “direct[ed] NCES to develop a rigorous quality assurance
process for reported data.” (Id.).
3. 	Admissions and Consumer Transparency Supplement (“ACTS”)
In response to the directives, DOE added a new Admissions and Consumer Transparency
Supplement (“ACTS”) survey component to IPEDS for four-year institutions with selective
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college admissions. (Dkt. No. 69-8). DOE stated that it viewed those institutions as “hav[ing]
an elevated risk of noncompliance with the civil rights laws.” (Id.).
On August 15, eight days after the presidential memorandum was issued, DOE, IES, and
NCES posted an initial request for comment on the proposed change. (Id.). The initial request
for comment did not include the ACTS survey itself. (Id.). Rather, it listed general categories of
information that it “anticipated” would be included. (Id.). For all students, NCES anticipated
collecting data disaggregated by race and sex on:
(1) students’ average cumulative GPA at the end of the academic year; (2) the average
cost of attendance, and further disaggregated by admission test score quintiles, ranges of
high school grade point average, ranges of family income, and enrollment via early
action, early decision, or regular admissions. (3) graduation rates further disaggregated by
admission test score quintiles and ranges of high school grade point average; and (4)
graduates’ final cumulative grade point average.
(Id.). For undergraduates, it would also collect data on:
(1) the count of institutions’ applied, admitted, and enrolled cohorts, both overall and
further disaggregated by admission test score quintiles, GPA quintiles, ranges of family
income, Pell Grant eligibility, and parental education; (2) the average high school grade
point average and admission test score quintiles for institutions’ applied, admitted, and
enrolled cohorts; (3) the count of students admitted via early action, early decision, or
regular admissions.
(Id.). For newly enrolled undergraduate students, the ACTS survey would also collect
disaggregated data on any institutional, merit, need-based, or local, state, or federal aid. (Id.).
Graduate-student data would be further disaggregated by field of study. (Id.).
For the first year, the 2025-2026 survey, ACTS would collect data from that year and the
six prior academic years to “to establish a baseline of admissions practices from before the
Supreme Court decision in SFFA v. Harvard.” (Id.). Moreover, NCES anticipated that it “may
use [the] data to develop risk-based enforcement” of unlawful discrimination. (Id.).
The comment period closed on October 14, 2025. (Dkt. No. 9-2, at 4). DOE received
3,462 comments, including comments submitted by the plaintiffs in this case. (Id.; Dkt. No. 69-
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9). Many commenters raised concerns about the timeline for implementation; data
standardization and quality; the burden on reporting institutions; the lack of clear guidance and
data definitions; risks of potential identification of individuals in disaggregated data reporting;
unavailability or inaccessibility of some of the requested data; challenges with collecting
decentralized graduate admissions data; and disruption to college operations due to the rapid
implementation of the expansive data collection. As to each of those concerns, NCES’s response
began with the same form language “[t]hanking [the commenters] for [their] feedback regarding
the proposed Admissions and Consumer Transparency Supplement (ACTS)” and noting that
[t]he data collection proposed by ED is in direct response to priorities articulated by the
Administration. President Donald J. Trump issued a Presidential Memorandum on
August 7, 2025 entitled “Ensuring Transparency in Higher Education Admissions,” . . . .
In that memorandum, President Trump directed the Secretary of Education to, within 120
days of that date, “expand the scope of required [IPEDS] reporting to provide adequate
transparency into admissions.” On that same day, Secretary McMahon issued a directive
to NCES to initiate a series of changes to IPEDS during the 2025-26 school year.
(Dkt. No. 9-2).
On November 13, DOE, IES, and NCES published a further notice submitting the new
survey component to the Office of Management and Budget for approval and requesting
comments. (Dkt. No. 69-11). DOE published the ACTS component with that notice. (Dkt. No.
69-12). Other than proposing an exemption for four-year institutions that accepted all applicants
and did not award need-based aid, the second notice for comment introduced no substantive
changes to the data sought, timeline, or level of disaggregation. (Compl. ¶ 57).
That comment period closed on December 15, 2025, with 146 additional comments. (Id.
¶ 58). OMB then approved the ACTS survey and certified its compliance with the Paperwork
Reduction Act (“PRA”) requirements of 44 U.S.C. § 3506(c)(3). (Dkt. No. 69-14).2 The
2 Defendants allege, and plaintiffs do not dispute, that OMB approved and certified the ACTS survey
component after the November notice-and-commend period closed. (Def.’s Opp’n 6, Dkt. No. 68). It is curious,
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Department also published its responses to the November request for comment. (Dkt. No. 69-
17).
DOE opened the ACTS component on December 18. (Dkt. No. 69-18). Submissions
were due for many institutions by March 18, 2026, giving institutions 90 days to complete the
survey. (Id.). On March 5, NCES extended the deadline to April 8 for institutions that had
submitted three years of ACTS data. (Dkt. No. 69-19 ¶ 10).
Institutions had the option to submit student-level data to a third party through an
“Aggregator Tool” or run a provided Python code locally to aggregate data internally. (Compl.
¶ 106). Several institutions received a warning that the Aggregator Tool contained a virus when
they attempted to download it. (Compl. ¶ 107). The Python tool was not available until early
2026. (Compl. ¶ 106). On January 26, 2025, DOE’s third-party contractor released updated data
templates for institutions to submit data that clarified definitions, changed variables for reporting
income, and removed certain data fields. (Id. ¶ 108). They provided another updated template
on February 17. (Id.).
B. 	The Parties
Plaintiffs are seventeen states whose public colleges and universities participate in federal
student financial aid programs under Title IV of the Higher Education Act.3 Defendants are the
Department of Education; Linda McMahon, Secretary of Education; the Office of Management
and Budget; and Russell Vought, Director of the Office of Management and Budget.
however, that the certification record defendants submitted shows a certification date of November 13, 2025—that
is, the same day that DOE submitted the component to OMB. (Dkt. No. 69-14).
3 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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C. 	Procedural Background
On March 11, 2026, plaintiffs filed a complaint challenging the ACTS survey. (Dkt. No.
1). The complaint asserts three APA claims. Count 1 alleges that defendants exceeded their
statutory authority by “collect[ing] data for purposes of partisan ends [and] for purposes of either
monitoring compliance with or enforcing the law.” (Id. ¶ 124). Count 2 alleges that the
implementation of the ACTS survey did not comply with the procedures mandated by the
Paperwork Reduction Act and E-Government Act of 2002. (Id. ¶ 129). Count 3 alleges that
defendants’ decision to adopt the ACTS survey is “arbitrary, capricious, an abuse of discretion,
and otherwise not in accordance with law” within the meaning of § 706(2)(A).
Two days later, on March 13, plaintiffs filed a motion for a temporary restraining order.
(Dkt. No. 6). That motion sought a stay of agency action pursuant to 5 U.S.C. § 705 for the
pendency of the litigation and a temporary restraining order enjoining defendants from (1)
accessing information uploaded by plaintiffs in the ACTS survey; (2) requiring plaintiffs
complete the survey by March 18; (3) assessing penalties on plaintiffs based on their
submissions; and (4) using the ACTS survey as the basis for any investigation or enforcement
action. (Id. at 1-2).
Later that day, the Court issued a temporary restraining order extending the deadline to
complete the ACTS survey through March 25, 2026, to permit orderly briefing and a hearing on
the motion. (Dkt. No. 13). On March 19, 2026, the Association of American Universities and
various other national higher-education associations moved to file a brief as amici curiae, which
the Court granted. (Dkt. Nos. 52, 72). Defendants filed an opposition on March 23, 2026. (Dkt.
No. 68).
The Court then held a hearing on March 24, 2026, and issued a brief further temporary
restraining order extending the time period to April 6, 2026, for the 17 named plaintiffs and their
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constituent institutions. As stated at the hearing, because defendants have appeared in the case
and filed a response, plaintiffs’ motion will be treated as one seeking a preliminary injunction.
Both plaintiffs and defendants then filed supplemental briefings. (Dkt. Nos. 96, 99).
The Association of American Universities and Association of Independent Colleges and
Universities in Massachusetts have also moved to intervene in this case. (Dkt. Nos. 83, 109).
Those motions remain pending and a hearing is scheduled for April 13, 2026.
II. 	Standard of Review
Federal Rule of Civil Procedure 65 governs the issuance of preliminary injunctive relief.
To grant a preliminary injunction, a district court must find that the moving party has established
(1) a likelihood of success on the merits, (2) a likelihood of irreparable harm absent interim
relief, (3) that the balance of equities weighs in its favor, and (4) that an injunction or stay is in
the public interest. Voice of the Arab World, Inc. v. MDTV Med. News Now, Inc., 645 F.3d 26,
32 (1st Cir. 2011) (quoting Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
When the government is the opposing party, the equities and public interest factors merge.
Massachusetts v. National Institutes of Health, 770 F. Supp. 3d 277, 295 (D. Mass. 2025)
(quoting Nken v. Holder, 556 U.S. 418, 435 (2009)). In addition, of those four factors, the
likelihood of success on the merits “normally weighs heaviest in the decisional scales.”
Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009); see also New Comm
Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (“The sine qua non of this
four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate
that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.”).
Separately, the APA authorizes courts “[o]n such conditions as may be required and to
the extent necessary to prevent irreparable injury” to “issue all necessary and appropriate process
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to postpone the effective date of an agency action or to preserve status or rights pending
conclusion of the review proceedings.” 5 U.S.C. § 705.
Courts typically consider the same four factors in evaluating whether to issue a
preliminary injunction, or a stay of agency action under § 705. See Johnson v. Allen, 2022 WL
16823008, at *5 (D. Mass. Nov. 8, 2022) (“A motion for a temporary restraining order is
evaluated by the same factors as a motion for preliminary injunction.” (quoting Snell v.
Descoteaux, 2022 WL 3327490, at *1 (D. Mass. Aug. 11, 2022))); African Communities
Together v. Noem, 2026 WL 395732, at *4 (D. Mass. Feb. 12, 2026) (citing National TPS All. v.
Noem, 150 F.4th 1000, 1015 (9th Cir. 2025); Cook County v. Wolf, 962 F.3d 208, 221 (7th Cir.
2020); Colorado v. United States EPA, 989 F.3d 874, 883 (10th Cir. 2021)).
The court may accept as true “well-pleaded allegations [in the complaint] and
uncontroverted affidavits.” Rohm & Haas Elec. Materials, LLC v. Electronic Cirs. Supplies,
Inc., 759 F. Supp. 2d 110, 114 n.2 (D. Mass. 2010). “The Court may also rely on otherwise
inadmissible evidence, including hearsay, in deciding a motion for preliminary injunction.”
Boston Taxi Owners Ass’n v. City of Boston, 84 F. Supp. 3d 72, 78 (D. Mass. 2015) (citing Asseo
v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)). Evidentiary issues such as hearsay “go
to weight rather than admissibility” in ruling on a preliminary injunction. Gateway City Church
v. Newsom, 516 F. Supp. 3d 1004, 1009 n.3 (N.D. Cal. 2021) (quoting Disney Enters., Inc. v.
VidAngel, Inc., 224 F. Supp. 3d 957, 966 (C.D. Cal. 2016)).
III. 	Analysis
A. 	Likelihood of Success on the Merits
Under the Administrative Procedure Act, 5 U.S.C. § 706(2), a reviewing court shall “hold
unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” id. § 706(2)(A), “in excess of statutory jurisdiction,
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authority, or limitations, or short of statutory right,” id. § 706(2)(C), or “without observance of
procedure required by law,” id. § 706(2)(D). Plaintiffs assert three claims under § 706(2). They
allege that defendants exceeded their statutory authority, did not observe the procedure required
under the PRA, and acted arbitrarily and capriciously.4 The Court will address each in turn.
1. 	Whether the Agency Exceeded its Statutory Authority
First, plaintiffs argue that the ACTS survey exceeds the statutory authority granted to
NCES because its purpose in obtaining the additional data was to enforce compliance with
federal civil rights law.
As noted, federal law provides that NCES “shall collect, report, analyze, and
disseminate” certain “statistical data,” including “information by gender, race, ethnicity,
socioeconomic status, limited English proficiency, mobility, disability, urban, rural, suburban
districts, and other population characteristics, when such disaggregated information will facilitate
educational and policy decisionmaking.” 20 U.S.C. § 9543(a)(3). The ACTS survey fits
comfortably within that statutory provision: it is a collection of statistical data on applicants,
enrolled students, and graduates broken down by race/ethnicity, sex, test scores, and high school
GPA, among other things. (Dkt. No. 69-12, at 7-9). And the government represents that this
data will be used to facilitate policy decisionmaking by “providing greater transparency into
colleges’ admissions and compliance with civil rights laws.” (Def.’s Opp’n 14, Dkt. No. 68).
For those reasons, the ACTS survey appears to be a permissible exercise of the agency’s
statutory authority.
4 Count 2 of the complaint also alleges that defendants violated the E-Government Act of 2002. (Compl.
¶ 129). Plaintiffs do not address that claim in their motion for preliminary relief.
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Plaintiffs contend, however, that both NCES and IES have statutory “mission statements”
that limit how they may carry out their statutory duties. The mission of IES is to “compile
statistics, develop products, and conduct research, evaluations, and wide dissemination activities
in areas of demonstrated national need,” and in doing so it is to “ensure that such
activities . . . are objective, secular, neutral, and nonideological and are free of partisan political
influence and racial, cultural, gender, or regional bias.” 20 U.S.C. § 9511(b)(2). Similarly, the
mission of NCES is to “collect, analyze, and report education information and statistics in a
matter that is objective, secular, neutral, and nonideological and is free of partisan political
influence and racial, cultural, gender, or regional bias.” 20 U.S.C. § 9541(b)(3).
Plaintiffs contend that the ACTS survey is not “neutral” because “the ACTS survey’s
purpose is to circumvent established law-enforcement mechanisms and convert IPEDS into a
tool to identify alleged wrongdoers and drive enforcement actions.” (Pls.’ Mem. Supp. TRO 11,
Dkt. No. 7). According to plaintiffs, only the Department’s Office of Civil Rights has the
authority to collect such information concerning compliance with federal law.
The statute does not, however, include the limitation on the use of IPEDS data that
plaintiffs seek to read into it. It seems clear that one of the primary reasons for the government
to seek data broken down by race and ethnicity—as NCES is explicitly empowered to do, see 20
U.S.C. § 9543(a) —is to ascertain whether the data shows a potential pattern of racial
discrimination. Presumably, evidence of discrimination could serve as the basis for a referral to
another agency for investigation or possible enforcement action. And although plaintiffs suggest
that the desire to use the data for enforcement actions renders the ACTS survey not “neutral,” it
is unclear why that is the case. Presumably, a collection of information would not be neutral if it
required different information from different respondents—for example, if it requested different
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information from the University of California at Berkeley than it did from the University of
Texas. But even assuming, without deciding, that the IES and NCES mission statements in fact
create duties enforceable against the agency,5 it is not clear why the desire to potentially use the
data collected to aid in enforcing civil-rights law would render the ACTS survey not “neutral.”
And the mere fact that the Department’s Office of Civil Rights could receive data from the
ACTS in order to investigate potential violations does not mean that NCES is barred from
seeking such information in the first instance. For those reasons, plaintiffs are not likely to
succeed on their claim that the ACTS survey exceeds the agency’s statutory authority.
2. 	Whether the Agency Violated the Paperwork Reduction Act
Next, plaintiffs contend that defendants violated § 706(2)(D) because the ACTS survey
violated the Paperwork Reduction Act, 44 U.S.C. § 3501 et seq., in that the ACTS survey, as a
“collection of information,” failed to comply with several substantive limitations contained in
that Act.
One of the purposes of the Paperwork Reduction Act is to “minimize the paperwork
burden for . . . educational and nonprofit institutions . . . resulting from the collection of
information by or for the Federal Government.” 44 U.S.C. § 3501(1). The relevant provision of
the PRA, § 3506(c), imposes certain procedural limitations on government agencies “[w]ith
respect to the collection of information.” Id. § 3506(c). “Collection of information” is defined
as
the obtaining, causing to be obtained, soliciting, or requiring the disclosure to
third parties or the public, of fats or opinions by or for an agency, regardless of
5 In other circumstances, courts have recognized that statutory provisions that express the “sense of
Congress” on a particular matter do not impose binding constraints on an agency. See Yang v. California Dep’t of
Soc. Servs., 183 F.3d 953, 958-62 (9th Cir. 1999) (holding that a “sense of Congress” provision was “non-binding,
legislative dicta,” id. at 961-62); cf. Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 994-95 (1st Cir.
1992) (holding statute which noted the “sense of Congress” that states should change laws regarding treatment of
mental health patients created no enforceable federal rights).
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form or format, calling for either—(i) answers to identical questions posed to, or
identical reporting or recordkeeping requirements imposed on, ten or more
persons, other than agencies, instrumentalities, or employees of the United States;
or (ii) answers to questions posed to agencies, instrumentalities, or employees of
the United States which are to be used for general statistical purposes.
Id. § 3502(3).6
The PRA requires that each agency conduct several internal processes before submitting
the collection of information to the Director of the Office of Management and Budget for
approval, id. § 3506(c)(1); provide 60-day notice in the Federal Register before the collection of
information is implemented, id. § 3506(c)(2); and “certify (and provide a record supporting such
certification, including public comments received by the agency) that each collection of
information submitted to” OMB complies with several substantive standards, including, among
others, that it “is necessary for the proper performance of the functions of the agency” and that it
“has been developed by an office that has planned and allocated resources for the efficient and
effective management and use of the information to be collected,” id. § 3506(c)(3).
There is some debate among courts about how the requirements of the PRA may be
enforced by private parties. The statute provides that failure to comply with certain provisions of
the PRA “may be raised in the form of a complete defense, bar, or otherwise at any time during
the agency administrative process or judicial action applicable thereto.” 44 U.S.C. § 3512(b).
The PRA does not, however, include an express private right of action. See Sutton v. Providence
St. Joseph Med. Ctr., 192 F.3d 826, 844 (9th Cir. 1999). That fact notwithstanding, several
courts, including another session of this court, have recognized that failure to comply with the
PRA can, in some circumstances, be enforced under the APA by asserting that the relevant
6 The definition explicitly excludes the collection of information for purposes of particular criminal or civil
enforcement actions. See 44 U.S.C. § 3502(3), 3518(c).
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agency action was taken “without observance of procedure required by law.” See Orr v. Trump,
778 F. Supp. 3d 394, 425-26 (D. Mass. 2025); see also Hyatt v. Office of Mgmt. & Budget, 908
F.3d 1165, 1169 (9th Cir. 2018). The Court agrees, noting that the Supreme Court has
recognized that the APA “permits suit for violations of numerous statutes of varying character
that do not themselves include causes of action for judicial review.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 572 U.S. 118, 130 (2014).
Where courts have found that certain requirements of the PRA can be enforced through
APA challenges, however, they have been purely procedural requirements of the PRA. Thus, for
example, courts have found information-collection efforts invalid where the agency failed to
obtain approval from OMB as the statute requires. See Center for Auto Safety v. National
Highway Traffic Safety Admin., 244 F.3d 144, 144-49 (D.C. Cir. 2001). Similarly, certain
information-collection efforts are invalid where the agency fails to publish the required 60-day
notice in the Federal Register. Orr, 778 F. Supp. 3d at 426; cf. Doctors for Am. v. Office of
Personnel Mgmt., 766 F. Supp. 3d 39, 52 (D.D.C. 2025) (holding that violation of another notice
provision of the PRA likely violated the APA).
Plaintiffs here, however, seek to go further. They contend that ACTS violates the PRA—
not because DOE did not obtain approval from OMB, or did not provide the required notice in
the Federal Register—but instead because the ACTS survey does not comply with several
substantive limitations in the PRA.7
7 In particular, plaintiffs contend that the ACTS survey is not “necessary for the proper performance of the
functions of the agency”; is “unnecessarily duplicative of information otherwise reasonably accessible to the
agency”; does not “reduce[] to the extent practicable and appropriate the burden on persons who shall provide
information to or for the agency”; is not “written using plain, coherent, and unambiguous terminology and is [not]
understandable to those who are to respond”; is not “implemented in ways consistent and compatible, to the
maximum extent practicable, with the existing reporting and recordkeeping practices of those who are to respond”;
was not “developed by an office that has planned and allocated resources for the efficient and effective management
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The language of the PRA does not provide that a reviewing court may determine for itself
whether an agency has complied with the various substantive requirements. The statute requires
only that an agency “certify” that its proposed collection of information meets the requirements
and that it “provide a record supporting such certification.” 44 U.S.C. § 3506(c)(3). Thus, if an
agency failed to provide the required certification, the collection of information would violate the
APA, just as if the agency failed to provide the required notice or obtain OMB approval. See
Orr, 788 F. Supp. 3d at 426; Center for Auto Safety, 244 F.3d at 148-49. The same would be
true if the agency failed to provide any record whatsoever supporting such certification. But the
statute does not appear to prove a role for a reviewing court to analyze whether the substantive
standards are met, as might be the case if the statute required that a collection of information be
“necessary for the proper performance of the functions of the agency,” not merely that the
agency certify that it is.
To be sure, the requirement that the agency provide a record supporting its certification
suggests that there may be some limited role for a reviewing court to evaluate the agency’s
reasoning. Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 419-20
(1971) (discussing necessity of administrative record to permit reviewing court to determine
whether informal agency adjudication was arbitrary or capricious); United States v. Nova Scotia
Food Prods. Corp., 568 F.2d 240, 249 (2d Cir. 1977) (“Adequate review of a determination
requires an adequate record, if the review is to be meaningful.”). But as far as the Court can tell,
no other court has engaged in that exercise under the PRA. And particularly in the context of a
preliminary-injunction proceeding, and in the absence of a developed factual record, the Court is
and use of information to be collected”; and does not “use[] effective and efficient statistical survey methodology
appropriate to the purpose for which the information is to be collected.” 44 U.S.C. § 3506(c)(3).
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disinclined to adopt a novel argument to support a finding of a likelihood of success on the
merits.
In any event, 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 in
fact comply with the requirements of § 3506(c)(3).8 Evaluating that contention would exceed
the proper scope of the Court’s review. It is an oft-repeated principle of judicial review of
administrative action that “a court is not to substitute its judgment for that of the agency.” Motor
Vehicle Mfr.’s Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). But that is
precisely what plaintiffs invite the Court to do here: to apply its own judgment to determine
whether the ACTS survey complied with the statutory requirements, rather than evaluating the
decision-making process underlying the determination that it did. Where the agency has certified
that it complied with the requirements of § 3506(c)(3), and the record at least arguably supports
that certification, the reviewing court’s role appears to be at an end. Because the Court
concludes that the PRA certification complied with the requirements of § 3506(c)(3), 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.9
8 In their reply memorandum, plaintiffs frame their argument as being that the record did not support the
agency’s certification. (Pls.’ Reply 4-7, Dkt. No. 96). But the majority of their argument still focus on whether the
ACTS survey itself met the requirements of § 3506(c)(3), not on the quality of the agency’s decisionmaking. In any
case, their initial memorandum in support of the motion addressed only the substantive issue, and “[a]rguments
raised for the first time in a reply brief are generally deemed waived.” Murray v. Uber Techs., Inc., 486 F. Supp. 3d
468, 473 (D. Mass. 2020).
9 In their reply memorandum, plaintiffs also contend that the ACTS survey violated 44 U.S.C.
§ 3506(c)(2)(A) and 5 C.F.R. § 1320.8(d)(2) because defendants did not publish the full survey instrument in the
Federal Register notice. (Pls.’ Reply 3-4). As an initial matter, because this argument was not raised until plaintiffs’
reply, it is similarly waived. Murray, 486 F. Supp. 3d at 473. In any event, it is unclear whether this argument is
correct. The statute requires only that the agency “provide 60-day notice” without defining what that notice must
include, and therefore failure to include the entire survey instrument does not appear to violate the statute. 44
U.S.C. § 3506(c)(2)(A). The regulation requires that, “[i]f the agency does not publish a copy of the proposed
collection of information . . . as part of the Federal Register notice, the agency should” either “[p]rovide more than
60-day notice” or “[e]xplain how and from whom an interested member of the public can request and obtain a copy
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Despite that conclusion, the Court notes that it is skeptical of one of the certifications
made by DOE: that the ACTS survey was “developed by an office that has planned and
allocated resources for the efficient and effective management and use of the information to be
collected.” 44 U.S.C. § 3506(c)(3)(H). It is a matter of public record that the executive branch
is undertaking all efforts permitted by law to shutter DOE and transfer its functions to other
agencies of the federal government or to states and local communities. See Exec. Order No.
14242 § 2(a), 90 Fed. Reg. 13679, 13679 (Mar. 25, 2025) (“The Secretary of Education shall, to
the maximum extent appropriate and permitted by law, take all necessary steps to facilitate the
closure of the Department of Education and return authority over education to the States and
local communities . . . .”). Because that fact is relevant to the Court’s arbitrary-and-capricious
review, it will address the issue in that context.
3. 	Whether the Agency’s Action Was Arbitrary and Capricious
Finally, plaintiffs assert that defendants’ implementation of the ACTS survey was
arbitrary and capricious because they failed to consider reliance interests, failed to consider an
important aspect of the problem, deviated from past practices with inadequate explanation, and
failed to consider reasonable alternatives.
The “arbitrary-and-capricious standard requires that agency action be reasonable and
reasonably explained.” F.C.C. v. Prometheus Radio Project, 592 U.S. 414, 423 (2021). In
making its decision, the agency must “examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co.,
without charge.” 5 C.F.R. § 1320.8(d)(2). The use of “should” here, rather than “shall” as used elsewhere in the
regulation, makes it unclear whether this creates a mandatory duty that the agency must follow. In any event, at the
preliminary-injunction stage, plaintiffs have not shown that they are likely to succeed on claim.
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463 U.S. 29, 30 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962)). A court’s review “is deferential, and a court may not substitute its own policy judgment
for that of the agency.” Prometheus, 592 U.S. at 423.
An agency acts arbitrarily and capriciously when it “entirely fail[s] to consider an
important aspect of the problem.” State Farm, 463 U.S. at 43. The agency need not “consider
all policy alternatives in reaching [its] decision.” Id. at 51. But it “must consider and explain its
rejection of . . . significant and viable and obvious alternatives,” National Shooting Sports
Found., Inc. v. Jones, 716 F.3d 200, 215 (D.C. Cir. 2013) (citation modified), that are “within the
ambit of the existing standard,” State Farm, 463 U.S. at 51. It must also “respond to ‘relevant’
and ‘significant’ public comments.” Penobscot Air Servs., Ltd. v. F.A.A., 164 F.3d 713, 719 n.3
(1st Cir. 1999) (quoting Home Box Office, Inc. v. F.C.C., 567 F.2d 9, 35 & n.58 (D.C.
Cir.1977)). Otherwise, “the opportunity to comment is meaningless.” Home Box Office, 567
F.2d at 35.
In addition, under the “change-in-position doctrine,” an agency that “acts inconsistently
with an earlier position [or] performs a reversal of its former views as to the proper course,” must
“display awareness that it is changing position and offer good reasons for the new policy.”
F.D.A v. Wages & White Lion Invs., L.L.C., 145 S. Ct. 898, 918 (2025) (citation modified). In
doing so, it “must be cognizant that longstanding policies may have engendered serious reliance
interests that must be taken into account.” Id. (citation modified).
Presidential directives do not enable agencies to bypass those requirements. The First
Circuit has explained that “agency action that carries out a presidential directive is ordinarily
subject to APA review.” Agatha v. Trump, 151 F.4th 9, 11 (1st Cir. 2025), rev’d on other
grounds, Trump v. Orr, 146 S. Ct. 44 (2025); see also New York v. Trump, 811 F. Supp. 3d 215,
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235 (D. Mass. 2025) (“Circuit precedent forecloses [the] argument” that “an agency is exempt
from the requirements of § 706(2)(A) whenever it acts pursuant to a presidential command.”),
appeal docketed, No. 26-1174 (1st Cir. Feb. 23, 2026); American Academy of Pediatrics v.
Kennedy, 2026 WL 733828, at *11 (D. Mass. Mar. 16, 2026) (“Defendants cannot disregard the
APA’s requirements simply because they are following the President’s orders.”).10 Other
circuits agree. See Nebraska v. Su, 121 F.4th 1, 15 (9th Cir. 2024); Chamber of Com. of the U.S.
v. Reich, 74 F.3d 1322, 1327 (D.C. Cir. 1996).
The record makes clear that NCES declined to use the same deliberate process for
developing and implementing IPEDS changes that it used before because that process was
incompatible with the President’s timeline. Nor did the agency meaningfully engage with
comments that raised serious concerns about the impact of that rushed process. Yet neither the
President, nor the Secretary, nor the agency ever explained the purpose of the truncated timeline.
Rather, NCES developed and implemented the ACTS survey in accordance with an arbitrary
limitation whose purpose was, and remains, entirely undisclosed.
As noted, the Presidential Memorandum directed the Secretary of Education “[w]ithin
120 days of the date of this memorandum, and to be initiated this 2025-2026 school year, . . . [to]
expand the scope of required reporting to provide adequate transparency into admissions, as
determined by the Secretary of Education, consistent with applicable law.” (Dkt. No. 69-6). The
memorandum offered no explanation, much less a reasoned one, for the 120-day timeline, nor
did it describe the data collection as time sensitive.
10 The Supreme Court’s emergency docket order in Trump v. Orr does not disturb that precedent. See New
York v. Trump, 811 F. Supp. 3d at 235-37 (distinguishing Trump v. Orr). There is an exception “where a
statute . . . expressly delegates discretion to the President himself and ‘require[s] [the agency] to follow’ directives
pursuant to that delegation.” Id. at 237 (quoting Orr, 146 S. Ct. at 46). That was the case in Orr, but is not the case
here. See 22 U.S.C. § 211a (directing the Secretary of State to issue passports “under such rules as the President
shall designate and prescribe” (emphasis added)).
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Secretary McMahon then “direct[ed] NCES to make the [relevant] changes within the
120-day timeline contained in the Presidential Memorandum, which shall be initiated during the
2025-2026 school year.” (McMahon Mem.). The only explanation the McMahon memorandum
offered for the 120-day timeline was the presidential directive.
NCES then treated the 120-day timeline as essentially inviolable.11 In October 2025, the
agency published its responses to comments received during the initial 60-day comment period.
(Dkt. No. 9-2). It noted that “288 comments had raised concerns about the adequacy of the
timeline for implementing new data reporting requirements of this magnitude, both for
institutions and for the IPEDS program.” (Id. at 13). The agency responded:
While NCES recognizes the challenges associated with implementing a new data
collection quickly-both for institutions and the IPEDS program-the timeline has been
specified by the Presidential Memorandum and Secretarial Directive, and ED is acting to
meet that timeline.
(Id.). It went on to discuss “[s]everal factors [that] mitigate those potential challenges.” (Id.).
Bu it never explained why—or even tried to explain—why those challenges had been created in
the first place.
As a result, NCES did not consider alternatives that were incompatible with that arbitrary
timeline. For example, multiple commenters expressed concerns about “the need for guidance,
including data definition” and “recommended a ‘pilot’ to test and refine data collection
procedures.” (Id. at 17). The agency’s response was the following:
NCES acknowledges and appreciates commentors’ views on the role of pilot data
collections, and related concerns around data definitions and need for guidance. They
note that the IPEDS Technical Review Panel (TRP) has historically been an additional
mechanism for gathering useful information about the feasibility of IPEDS data
collection and approaches to surmounting potential challenges. Neither the President’s
memorandum nor the Secretary’s directive make provisions for pilot or optional-year
11 In the end, the ACTS was published on December 18, 2025, 13 days after the 120-day deadline set by the
President.
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data collections or their equivalents. In light of the timeline established in the
memorandum and its accompanying directive, the feasibility of an ACTS-related IPEDS
TRP was deemed infeasible . . . .
(Id. at 17-18).
The agency’s responses to the November 30-day comment period were similar.
Commenters again “voice[d] concerns that the timeline . . . was too brief.” (Dkt. No. 69-17, at
5). The agency responded that the President’s “timeline precludes technical review panels, pilot
collections, phased in collection approaches, or other steps which might have been feasible in its
absence.” (Id.). Other commenters offered technical suggestions for improving the data
collection, such as changes to the format of templates, the use of sample surveys, or different
categorizations. (Id. at 24). The agency responded that it “will conduct a thorough review of all
aspects of the ACTS data collection following its close in Spring, 2026. . . . [S]uggestions like
those provided by commentors will be considered at that time, and may inform future plans for
the collection of ACTS data.” (Id.). But it did not explain why those suggestions could not be
considered before the first (and most comprehensive) data collection.
The inescapable conclusion is that the agency rushed to implement the ACTS survey
within the arbitrary timeline. It tried to “mitigate” the fallout of those drastic changes. But it
dismissed any suggestion or concern that would necessitate a longer timeline as “infeasible.”
To be clear, the problem is not simply the fact that there was a timeline or that the agency
did not follow its historical process of more careful deliberation. “[A]gencies [are] free to
fashion their own rules of procedure,” and the Court does not have the authority to “impose upon
the agency its own notion of which procedures are ‘best.’” Vermont Yankee Nuclear Power
Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 544, 549 (1978). The problem is that the
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agency changed its historical position, and rejected multiple comments expressing concern,
solely in order to achieve an arbitrary and unexplained deadline.12
Defendants contend that that the agency did explain its decision not to implement TRPs
or a pilot year. (Def.’s Opp’n (citing Dkt No. 69-10, at 18)). In responding to comments, the
agency noted that TRPs are discretionary. (Dkt No. 69-10, at 18).13 It stated that it was
“confident” that institutions would be able provide high-quality data given that “the majority of
the underlying data elements needed to fulfill the ACTS survey component requirements are also
necessary to complete other IPEDS surveys” and new elements were “commonly tracked by
postsecondary institutions.” (Id.). Institutions with further questions or concerns were
“encouraged to contact the IPEDS Help Desk for assistance.” (Id.). That purported explanation,
however, immediately followed the agency’s declaration that the use of TRPs or a pilot year was
“infeasible” “[i]n light of the timeline established in the [President’s] memorandum.” (Id. at 17-
18). The agency thus did not adequately consider an alternative course of action; instead, it
simply rejected any alternatives as infeasible in light of the deadline, and instead pointed out
12 Defendants do not challenge plaintiffs’ contention that the agency’s abandonment of the deliberate,
multistep process for implementing new IPEDS components constitutes a change in position. See F.D.A. v. Wages
& White Lion Invs., L.L.C., 145 S. Ct. 898, 918 (2025) (“The change-in-position doctrine [first] asks . . . whether an
agency changed existing policy.”). The Court therefore assumes, without deciding, that the change-in-position
doctrine applies. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (“The district
court is free to disregard arguments that are not adequately developed.”).
Rather, defendants dispute whether that change in position upsets a legitimate reliance interest and the
extent to which the agency explained its departure from past practice. The Court is not convinced that plaintiffs’
expectation that the agency would continue to employ the same deliberate process it historically used rises to the
level of a “legitimate reliance interest.” See Wages & White Lion, 145 S. Ct. at 927 (citation modified).
Nonetheless, the Court need not reach that question, as the agency did not provide a reasoned explanation for its
change in position.
13 Acknowledging the existence of the agency’s discretion is not, of course, the same as an explanation of
how that discretion is exercised.
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ways in which the impact of its decision might be less harmful than anticipated or mitigated in
the future.
Put another way, the agency failed to consider reasonable alternatives that were
incompatible with its new (and unexplained) position that a new survey component must be
initiated within 120 days. Commenters raised concerns about data definitions and quality. (Dkt.
No. 9-2, at 17). But the agency could not conduct TRPs or seek stakeholder input to refine the
data requested. Commenters noted the substantial burden of producing and ensuring the
accuracy of six years of decentralized admissions data on a short timeline. (Dkt. No. 69-13, at
5). But the agency could not extend the timeline past the 2025-2026 school year. Commenters
voiced concerns about the ACTs survey introducing new and untested submission procedures.
(Id.). But those procedures could not be tested in a pilot or optional-year data collection.
Of course, an executive-branch agency is not free to ignore presidential directives. But if
the President does not provide a reasoned explanation for a decision, then, at the very least, the
agency implementing that decision must provide one. Otherwise, the agency is not in fact
following the President’s directive to act “consistent with applicable law.” (Dkt. No. 69-6). If
there were good reasons for the timetable, the agency has not explained them, and “[i]t is not the
role of the [C]ourt[] to speculate.” Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 224
(2016). As a result, the Court finds that plaintiffs have shown a likelihood of success on their
arbitrary-and-capricious claim.
Compounding those issues is the fact that the agency implemented a massive expansion
of IPEDS at a time when the President ordered the agency to shut down. For some universities,
ACTS doubled the burden of IPEDS reporting. (Dkt. No. 9-4 ¶¶ 21-22). The new survey seeks
six years of sensitive, disaggregated data from thousands of institutions. (Dkt. No. 69-19 ¶ 7).
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Yet in the summer of 2025, around the same time ACTS was initiated, NCES had reduced its
staff to only three persons. (Dkt. No. 9-27 ¶ 15; Dkt. No. 9-28 ¶15). Before February 2025,
there were eight staff members assigned to the team responsible for IPEDS. (Dkt. No. 100-2 ¶
2). Now there are three staff members directly responsible for IPEDS. (Id. ¶ 2).14
In response to concerns by commenters about the capacity of NCES to effectively
manage the ACTS component and provide technical assistance, the agency simply responded
that “NCES and its IPEDS contractor have confidence in their joint capacity to collect, validate,
and report the ACTS data.” (Dkt. No. 69-17, at 24). It never even acknowledged the existence
of the staff reductions, much less explain how its reduced staff will be able to keep up with an
increased workload. Nor did it explain how the hollowed-out agency will be able to effectively
conduct disclosure risk reviews, identify inaccurate data, and develop useful statistical analyses.
From defendants’ response, it appears those tasks will be performed by contractors. (Def.’s
Suppl. Opp’n 3-4). To what extent contractors have the authority to assume NCES functions,
and what will happen when the Department of Education, and NCES with it, no longer exists,
was likewise unexplained.
At the very least, the dismantling of the agency with the statutory authority to implement
IPEDS—to collect the data, store it, analyze it, and address ongoing issues—is “an important
aspect of the problem.” State Farm, 463 U.S. at 43. Without any acknowledgement that the
problem exists, much less an explanation of how it will be resolved, the Court is left to conclude
that the agency “entirely failed to consider” it. Id. That, too, is evidence that the agency action
14 According to the government, the total number of people in NCES is now 12 staff members and one
detailee. (Dkt. No. 100-2 ¶ 2). According to amici, the total number was approximately 100 before the current
round of reductions began. (Dkt. No. 73, at 8-9).
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was arbitrary and capricious, and further supports the conclusion that plaintiffs are likely to
succeed on the merits of their claim.
B. 	Likelihood of Irreparable Harm
Plaintiffs allege three types of irreparable harm absent interim relief: the burden of
completing the ACTS survey; the burden of being subject to enforcement actions for inadequate,
incomplete, or erroneous data submissions; and privacy risks from revealing students’ personal
information.
The government’s principal response is that plaintiffs’ delay in filing suit undermines
their claims of irreparable harm. (Def.’s Opp’n 9). Plaintiffs filed the complaint a week before
the March 18, 2026 deadline for submitting the ACTS survey. But that timeline must be placed
in the context of the hasty development and implementation of the survey. Plaintiffs first had
access to the actual ACTS survey on November 13, 2025. That component was not finalized—
and therefore could not be challenged as a final agency action—until December 18, 2025.
Plaintiffs then had ninety days to complete the survey. They did not sit on their hands during
that time. (See Dkt. Nos. 9-3 to 9-26). Rather, they encountered issues completing the ACTS
survey, which was exacerbated by receiving changing information from the agency or its
contractors. Under those circumstances, any delay does not undercut their claims to irreparable
harm. More importantly, plaintiffs assert harms that can only occur after the deadline for
submission has passed. Any delay before the deadline has no bearing on those harms that will be
suffered after the deadline.
First, plaintiffs allege ongoing harm from the burden of responding to the ACTS survey.
The First Circuit has found that “administrative upheaval” from complying with government
regulation may constitute an irreparable harm. Doe v. Trump, 157 F.4th 36, 79 (1st Cir. 2025),
petition for cert. filed, No. 25-899 (U.S. Jan. 30, 2026). Indeed, plaintiffs allege that completing
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the ACTS survey entails restructuring their data-collection systems and diverting resources from
essential tasks. (Pls.’ Reply 8). For example, one institution “has not been able to complete
projects like scholarship awards, accreditation, financial aid awards, and others because of the
work required for the survey.” (Dkt. No. 9-12 ¶ 24). Those are harms that are not compensable
with money damages.
The Court acknowledges that some institutions have completely responded to the ACTS
survey or submitted at least three years of data. (Dkt. No. 100-2 ¶ 17). What burden, if any,
those universities faced to complete the survey is not before the Court. What is in the record are
a score of affidavits from officials from the public university systems of plaintiffs detailing the
substantial and ongoing challenges with completing the ACTS survey. (See Dkt. Nos. 9-3 to 9-
26). And it is simply not the case that the University of Wisconsin and the University of
California have, as defendants assert, “made no efforts to comply” with the survey. (Def.’s
Suppl. Opp’n 8).15
Second, plaintiffs contend that they face an imminent risk of fines and loss of federal
funding should defendants deem any submissions inadequate. Defendant contends that such
harms are speculative because “enforcement action[s] are not automatic” and by regulation
plaintiffs would have an opportunity to raise defenses at any such proceeding. (Def.’s Opp’n
11). Such enforcement actions, however, are hardly speculative.16 The lack of clear definitions
15 The University of California has “devote[d] substantial additional time and resources attempting to
interpret ACTS’ ambiguous reporting requirements.” (Dkt. No. 9-3 ¶ 23). The University of Wisconsin institutions
“divert[ed] important resources from other projects in order to complete the ACTS survey.” (Dkt. No. 9-23 ¶ 25).
16 It is perhaps more speculative whether the harm from fines or other enforcement actions is irreparable.
Generally, “traditional economic damages can be remedied by compensatory awards, and thus do not rise to the
level of being irreparable.” NACM-New England, Inc. v. Nat’l Ass’n of Credit Mgmt., Inc., 927 F.3d 1, 5 (1st Cir.
2019) (quoting Vaquería Tres Monjitas, Inc. v. Irizarry, 587 F.3d 464, 485 (1st Cir. 2009)). Plaintiffs may be able
recover the cost of fines or lost federal funds post-judgment, although it is not clear through what mechanism.
Regardless, defendants have not raised the argument that any monetary harm from a wrongful enforcement action
could be recovered. (See Def.’s Opp’n 10-12).
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and reporting standards, along with the tight timeline for reconciling any data issues, creates a
strong risk that, despite their best efforts, plaintiffs will submit inconsistent and inaccurate data.
(See, e.g., Dkt. No. 9-11 ¶ 28). Furthermore, the Presidential Memorandum contained a direct, if
not specific, enforcement threat; it directed the Secretary of Education to “increase accuracy
checks of submitted data” and “take remedial action, consistent with Title IV of the Higher
Education Act of 1965 and other applicable laws, if institutions fail to submit data in a timely
manner or are found to have submitted incomplete or inaccurate data.” (Dkt. No. 69-6).
Although the statute and regulation grant the Secretary the discretion to impose penalties, the
presidential directive provides for no such leeway. Contrast 35 C.F.R. §§ 668.84-86 (“The
Secretary may impose a fine,” “suspend an institution’s participation,” or “limit or terminate an
institution’s participation.”) (emphasis added), with Dkt. No. 69-6 (“The Secretary of Education
shall take remedial action” (emphasis added)). Moreover, that directive does not grant the
agency the flexibility to decline remedial action if an institution has a reasonable excuse for
“submitt[ing] incomplete or inaccurate data.” (Dkt. No. 69-6).
Third, plaintiffs raise the considerable privacy risks associated with disaggregated data
disclosure. Defendants challenge the contention that plaintiffs have standing to allege such a
privacy harm on behalf of their students. There are potentially complex questions concerning the
data privacy obligations of the universities as to their students, and the extent to which it can
assert those obligations in this context. Defendants have also outlined measures they intend to
take to mitigate any privacy risks. For present purposes, the Court will defer resolving those
issues, and note that its finding of irreparable harm does not rest on any privacy risks.
C. 	Balance of the Equities and Public Interest
The Court has thus concluded that there is a substantial likelihood that plaintiffs will
succeed on the merits of their claim that the promulgation of the ACTS was arbitrary and
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capricious, and that they will suffer immediate irreparable harm if the implementation of the
survey is not restrained. As noted, the two remaining factors, balance of the equities and the
public interest, merge when the government is the opposing party. Nken v. Holder, 556 U.S.
418, 435 (2009)).
There is a strong public interest in restraining the arbitrary exercise of power by the
federal government, and ensuring that the rule of law is enforced. There is likewise a strong
interest in relieving public universities of unnecessary risks and burdens that could be eliminated
or mitigated through a reasoned and careful administrative process. Nonetheless, defendants
assert three reasons for why the balance of the equities disfavor a preliminary injunction.
First, defendants contend that they have the authority to collect the requested data and
that it would intrude on that authority to enter an injunction. (Def.’s Suppl. Opp’n 11). But the
Court has concluded that while defendants likely do have the authority to collect the data, they
do not possess the authority to do so under the circumstances presented here, given the arbitrary
and capricious nature in which the ACTS was promulgated.17
Next, defendants contend that delay of data collection will delay the public release of
admissions data that college applicants may rely on in the upcoming application cycle. As a
consequence, they argue, applicants may “spend money on college application fees for schools to
which they otherwise might not apply because the data shows that they have no realistic chance
of admission.” (Id.). But the stated purpose of the ACTS is to expose unlawful race-based
admissions practices. Defendants point to no evidence that the survey was designed to benefit
17 For support, defendants cite to Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in
chambers). In that case, the Supreme Court found that there was a “fair prospect that [the] Court w[ould] reverse the
decision below” and find for the government. Id. Here, the Court finds that the government is unlikely to prevail.
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college applicants more broadly. Rather, what defendants seem to suggest is that applicants will
not apply to certain schools because they correctly believe, on the basis of the ACTS data, that
those schools will unlawfully discriminate against those particular applicants on the basis of race.
That reasoning is too attenuated without supporting evidence. Moreover, if illegal conduct
proves to be readily apparent from the ACTS data, applicants could seek an injunction against
the discriminating schools.
Finally, defendants allege that delay will increase the risk that data will not be available
for collection, as plaintiffs may destroy records currently in their possession. (Def.’s Suppl.
Opp’n 11-12). That issue is easily resolved. The Court will order plaintiffs to retain records that
are responsive to the ACTS survey for the duration of this litigation.
In sum, the balance of the equities and the public interest likewise favor preliminary
relief.
IV. 	Scope of Relief
Section 705 of the APA authorizes a reviewing court to “issue all necessary and
appropriate process to postpone the effective date of an agency action or to preserve status or
rights pending conclusion of the review proceedings.” 5 U.S.C. § 705.
The scope of relief under § 705 is unsettled. Although the Supreme Court’s recent
decision in Trump v. CASA, Inc. limited traditional equitable relief to the parties in the litigation,
it explicitly declined to address “the distinct question” of relief under the APA. 145 S. Ct. 2540,
2548 & n.10 (2025). It is true that there are good reasons to read a stay of agency action as
operating globally, not just the parties to the case. See Career Colleges & Schools of Texas v.
United States Dep’t of Educ., 98 F.4th 220, 255 (5th Cir. 2024) (concluding “that the scope of
preliminary relief under Section 705 aligns with the scope of ultimate relief under Section 706,
which is not party-restricted and allows a court to ‘set aside’ an unlawful agency action”); Make
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the Rd. New York v. Noem, 2025 WL 3563313, at *36 (D.C. Cir. Nov. 22, 2025) (per curiam)
(finding the government was “unlikely to succeed in its argument that Section 705 stays must be
confined to the plaintiffs before the court.”). Nonetheless, the Court does not need to reach the
issue, as § 705 also authorizes courts to “issue all necessary and appropriate process . . . to
preserve status or rights.” The language of § 705 thus appears to offer reviewing courts a choice
between issuing a stay of agency action or more limited equitable relief tailored to the case. See
Immigrant Defs. L. Ctr. v. Noem, 2025 WL 2017247, at *14 (9th Cir. July 18, 2025) (limiting
relief under § 705 to the party).18
Here, plaintiffs seek “preliminary relief for Plaintiffs.” (Pls.’ Reply 1). They do not seek
“global relief.” (Mot. Tr. 45, Dkt. No. 90). The Court will accordingly limit its order of
preliminary relief, under § 705 and Rule 65, to the plaintiffs in this case and their constituent
institutions. That order is without prejudice to such further modification as justice may require.
V. 	Conclusion
For the foregoing reasons, the motion of plaintiffs for a temporary restraining order,
construed as a motion for a preliminary injunction or stay, is GRANTED to the extent it seeks
preliminary injunctive relief as to the plaintiffs to this proceeding, and otherwise DENIED
without prejudice. A separate preliminary injunction order will issue.
18 See also Note, Halting Administrative Action in the Supreme Court, 137 H ARV. L. REV. 2016, 2019
(2024) (“Section 705 also empowers courts to issue all ‘necessary and appropriate process’ to ‘preserve status or
rights’ as challenges to agency action proceed. That authority includes courts’ traditional equitable authority to issue
injunctions.” (footnote omitted) (quoting 5 U.S.C. § 706)).
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So Ordered.
/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: April 3, 2026 	United States District Court Judge
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