Week in Review – New Developments from the Dept. Of Ed., More Enforcement Actions by the EEOC and DOJ, and Additional Challenges to Executive Orders | Franczek P.C.
It was another big week for the Department of Education, with President Trump signing an Executive Order on Thursday instructing Education Secretary Linda McMahon to take actions to “close” the Department. President Trump’s Executive Order came one week after the Department announced that it would lay off approximately 50% of its staff members and close seven regional offices of the Department’s Office for Civil Rights (“OCR”). Relatedly, a group of parents have filed suit against the Trump Administration related to the OCR closings, alleging that the administration’s actions exceeded the President’s authority and violated a myriad of laws.
In other notable news from the week, we continued to see enforcement actions from the Equal Employment Opportunity Commission, Department of Justice, and OCR against educational institutions and private employers alike related to DEI initiatives. As always, this Week in Review alert first summarizes the headlines of the week. We then provide detailed insights regarding the impact of these actions.
The Week in Brief:
(1) President Trump issued an Executive Order Directing the “Closure” of the U.S. Department of Education;
(2) Parents filed a lawsuit against the Trump administration for allegedly sabotaging the Department of Education’s OCR;
(3) OCR initiated Title VI Investigations into 45 educational institutions for partnering with “The Ph.D. Project”;
(4) The Fourth Circuit stayed an injunction blocking portions of DEI-related Executive Orders;
(5) The EEOC targeted twenty law firms for investigation into their DEI initiatives;
(6) The Justice Department withdrew ADA guidance for U.S. businesses; and
(7) The Trump administration suspended $175 million in federal funding from the Defense Department and the Department of Health and Human Services to University of Pennsylvania over a transgender swimmer.
Franczek Insights:
- President Trump Signs Executive Directing the “Closure” of the U.S. Department of Education – by Jared Costanzo and Hailey Golds
On March 20, 2025, President Trump signed an Executive Order titled “Improving Education Outcomes by Empowering Parents, States, and Communities.” This follows Education Secretary Linda McMahon’s “Final Mission” statement, where the Secretary outlined the Trump administration’s intent to overhaul the Department. We previously wrote about that statement here. The Executive Order directed Secretary McMahon to identify the functions of the Department of Education that “can, and should, be returned to the States.”
Specifically, the Executive Order directs Secretary McMahon to “take all necessary steps to facilitate the closure of the Department of Education and return authority over education to the States and local communities while ensuring the effective and uninterrupted delivery of services, programs, and benefits of which Americans rely.” The Executive Order also directs Secretary McMahon to ensure that programs receiving Federal funds comply with the Trump Administration’s requirement to terminate purported “illegal discrimination obscured under the label ‘diversity, equity, and inclusion’ or similar terms and programs promoting gender ideology.”
With respect to higher education and student loans, the Executive Order asserts that the “Department of Education is not a bank, and it must return bank functions to an entity equipped to serve America’s students,” and that by closing the Department of Education, “program implementation in higher education” would “drastically improve.” On Friday, March 21, President Trump indicated that the Small Business Administration, headed by Kelly Loeffler, will take over administration of student loans, though no official statement has been put out by the White House. The SBA is an independent agency of the United States government that provides support to entrepreneurs and small businesses. On Friday, the administration also announced plans to reduce the workforce of the SBA by 43%.
Because the Higher Education Act of 1965 stipulates that the Federal Student Aid Office should be under the purview of the Secretary of Education, Linda McMahon, the move is expected to face legal challenges.
President Trump also indicated that special needs and nutrition programs would be administered by the Department of Health and Human Services (“HHS”), under the purview of Health and Human Services Secretary Robert F. Kennedy, Jr. Trump had previously indicated that funding resources for children with disabilities and special needs will be “fully preserved” and redistributed to various agencies and departments.
Because the Department of Education was created by an act of Congress in 1979, President Trump cannot unilaterally dissolve the Department under federal law. A number of Department functions are also protected by statute, such as Title I’s target to serve lower-income communities and the Individuals with Disabilities Education Act’s mandate to assist students with disabilities. While Congressional Republicans are expected to back legislation abolishing the Department, it currently seems unlikely that such legislation would advance through the Senate, where 60 votes are typically needed to defeat a filibuster. As described below, the Administration is already facing legal challenges to its efforts to dismantle the Department.
- Trump Administration Sued for Allegedly “Decimating” and “Sabotaging” OCR – by Kristen Kinast
On March 14, 2025, a few days after the Department of Education announced it is firing roughly 1,300 employees, two parents and the Council of Parent Attorneys and Advocates, a national disability rights group, jointly filed a lawsuit against the Department, the Secretary of Education, and the Acting Assistant Secretary for Civil Rights. The complaint asserts that the Trump Administration’s actions have decimated OCR, leaving it unable to address issues of discrimination at school. The plaintiffs argue that the actions taken by the Trump Administration violate the Administrative Procedure Act (“APA”) in that they are arbitrary and capricious, exceed the agency’s lawful authority, and violate the equal protection clause of the Fifth Amendment to the U.S. Constitution by discriminating on the basis of race, sex, sexual orientation, and gender identity.
In support of their claims, the plaintiffs cite congressional findings that education is essential to the development of individuals and the country as a whole. Plaintiffs also cite mandates to the Department and OCR upon their creation, such as expanding educational access for all students, supporting state and local education efforts, and ensuring equal access to education and promotion of educational excellence through the enforcement of civil rights.
The complaint alleges that the Trump administration’s actions systemically obstruct the investigation of civil rights complaints and enforcement of federal law, including by barring the advancement of race- and sex-based claims under Title VI and Title IX and eliminating seven of the twelve regional OCR offices. Plaintiffs assert that these actions are contrary to OCR’s mandate and harm students and families who rely on it to ensure access to educational opportunities. Plaintiffs further argue that the Trump administration does not have authority to circumvent Congress by effectively shutting down OCR and preventing it from carrying out its mandate to enforce civil rights protections. In addition, plaintiffs allege that OCR’s actions under the Trump administration discriminate on the basis of race, sex, sexual orientation, and gender identity, which have disproportionately harmed students of color, women and girls, and LGBTQI+ students.
Plaintiffs are requesting a finding that the Trump administration’s actions violate the APA, exceed statutory authority, and violate the Fifth Amendment. They are also requesting a permanent injunction to restore the investigation and processing capacity of OCR, to process complaints promptly and equitably, and to order additional remedies to ensure the Department of Education and OCR comply with their legal obligations. The Trump administration has yet to file its response to this complaint.
- OCR Initiates Title VI Investigations Into 45 Higher Education Institutions – Rachel Domash
Following OCR’s issuance of its February 14, 2025 “Dear Colleague Letter,” OCR initiated investigations under Title VI of the Civil Rights Act of 1964 into 45 higher education institutions due to the institutions’ partnership with “The Ph.D. Project,” a nonprofit organization that partners with educational institutions to provide doctoral students with insights into obtaining a Ph.D., networking opportunities, and assistance in securing jobs. OCR states it is investigating allegations that The Ph.D. Project limits eligibility based on participants’ race in violation of Title VI. Institutions found in violation of Title VI’s prohibition on race, color, and national origin discrimination in education programs and activities risk losing federal funding.
In addition, OCR announced that it initiated additional investigations against seven higher education institutions for allegedly awarding impermissible race-based scholarships and administering programs that impermissibly segregate students based on race.
In its announcement, OCR quoted U.S. Secretary of Education, Linda McMahon, who stated “today’s announcement expands our efforts to ensure universities are not discriminating against their students based on race and race stereotypes…Students must be assessed according to merit and accomplishment, not prejudged by the color of their skin. We will not yield on this commitment.”
We previously reported on OCR’s February 14, 2025 Dear Colleague letter and its supplemental guidance FAQ released on February 28, 2025.
We will continue to track and report on developments from OCR and these Title VI investigations as they occur. A full list of the higher education institutions under investigation can be found here.
- Fourth Circuit Stays Injunction Blocking Portions of DEI-Related Executive Orders – Hope Harriman
Last week, we reported on recent developments in National Association of Diversity Officers in Higher Education v. Trump, in which a Maryland District Court judge granted a preliminary injunction blocking portions of President Trump’s Executive Orders concerning DEI—specifically, “Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Ending Illegal Discrimination and Restoring Merit-Based Opportunity.” Since we last reported, the Trump Administration filed an appeal in the United States Court of Appeals for the Fourth Circuit, which is responsible for hearing appeals from federal district courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. The Fourth Circuit granted the Trump Administration’s motion to stay enforcement of the preliminary injunction while the appeal is ongoing.
The Fourth Circuit’s stay of the preliminary injunction pending appeal signifies that the Fourth Circuit believes that the Trump Administration is likely to succeed in showing that the challenged provisions of the Executive Orders do not violate the First or Fifth Amendments. Practically, the stay means that federal government agencies are permitted to engage in conduct that was previously enjoined under the February 21, 2025, preliminary injunction.
As this case is ongoing, we do not yet have definitive authority regarding the legality of the challenged Executive Orders. Given the ever-shifting legal landscape, we encourage entities evaluating DEI-related stances or initiatives to consult with legal counsel. Each situation is unique and may require a different legal approach. If you have questions about any of your institution’s DEI-related stances or initiatives, please contact your Franczek attorney.
- The EEOC Investigates 20 Law Firms for Diversity, Equity, and Inclusion Initiatives – by Reva Ghadge
On March 17, 2025, the EEOC issued a press release stating its Acting Chair, Andrea Lucas, sent letters to twenty law firms for additional information regarding their diversity, equity, and inclusion practices. The EEOC reviewed publicly available information, including awards won by the law firms, posting on their public webpages, and diversity scholarship offerings, and informed each firm it was seeking additional facts and data to determine whether these practices violated Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination based on race, color, religion, sex (including sexual orientation and pregnancy), and national origin. The law firms were asked to provide information regarding their diversity internship application and selection criteria, summer associate hiring practices, compensation for summer associates, and whether they participate in the Sponsor’s for Educational Opportunity Law Fellowship program. The EEOC has stated “[i]t is the responsibility of the EEOC to enforce the provisions of Title VII with respect to businesses and other private sector employers” and its communication to these law firms is the latest in ongoing requests for information on diversity, equity, and inclusion practices from private and public employers by the EEOC, OCR, and DOJ.
On March 19, 2025, the EEOC and DOJ released joint guidance on “What to do if You Experience Discrimination Related to DEI at Work” and the EEOC separately released a Q&A regarding employee rights related to discrimination related to diversity, equity, and inclusion – in the workplace. In the press release, the EEOC reiterated that Title VII prohibits discrimination based on protected characteristics, and that diversity, equity, and inclusion policies, programs, and practices are subject to Title VII. The EEOC and DOJ joint guidance sets forth examples of disparate treatment, harassment, and retaliation claims and provides information for filing a charge of discrimination against an employer (whether private or public). The Q&A released by the EEOC provides similar information about when and how an employee may file a claim of discrimination related to diversity, equity, and inclusion activities, an explanation of Title VII’s protections and diversity, equity, and inclusion activities, and potential claims available under Title VII.
- DOJ withdraws ADA Disability Guidance for U.S. Businesses – by John Swinney
On Wednesday, March 19, 2025, the DOJ announced that it withdrew 11 guidance documents related to implementation of the Americans with Disabilities Act (“ADA”) in response to President Trump’s Executive Order on “Delivering Emergency Price Relief for American Families and Defeating the Cost of Living Crisis.” President Trump’s Executive Order, issued on January 20, 2025, called on agencies to evaluate their guidance documents and regulations to identify where agencies could provide emergency price relief to the American people and “increase the prosperity of the American worker.” The Executive Order specifically asked agencies to “eliminate unnecessary administrative expenses” and to “create employment opportunities for American workers, including drawing discouraged workers into the labor force[.]”
The DOJ’s press release specifically cites this Executive Order as justification for withdrawing the eleven ADA guidance documents, commenting that doing so will “streamline ADA compliance resources for American businesses” and “rais[e] awareness about tax incentives for businesses related to their compliance with the ADA.” Five of the eleven withdrawn documents pertained to outdated COVID-19 guidance. The remaining guidance documents include:
- Expanding Your Market: Maintaining Accessible Features in Retail Establishments
- Expanding Your Market: Gathering Input from Customers with Disabilities
- Expanding Your Market: Accessible Customer Services Practices for Hotel and Lodging Guests with Disabilities
- Reaching out to Customers with Disabilities
- Americans with Disabilities Act: Assistance at Self-Serve Gas Stations
- Five Steps to Make New Lodging Facilities Comply with the ADA
Withdrawal of these guidance documents does not in itself change businesses’ compliance obligations under the ADA, and it is unclear whether the DOJ intends to issue updated guidance. However, we will continue to monitor guidance from the DOJ and EEOC relating to the ADA and provide updates on any developments.
The DOJ’s press release reminds businesses that tax incentives are available for business to help cover the costs of making access improvements for customers or employees with disabilities. This reminder may be particularly beneficial to employers who have made access improvements to their facilities. Additional information regarding these tax incentives is available on the DOJ’s ADA website.
- Trump Administration Suspends $175 Million in Federal Funding to the University of Pennsylvania over Transgender Swimmer – by John Swinney
As we previously reported, on February 5, 2025, President Trump signed an Executive Order titled “Keeping Men Out of Women’s Sports.” The Order aims to restrict the participation of transgender women and girls in women’s athletic competitions. The Order also threatens to rescind federal funds from institutions that allow transgender women to participate in women’s sports. In the weeks since President Trump issued that Executive Order, OCR has opened several investigations into schools and states that have failed to comply with the Order, including investigations in California, Maine, Minnesota, and Washington. More information on these investigations can be found in our previous alerts, issued on February 17 and February 28.
On March 19, 2025, the Trump administration announced that the Department of Defense and Department of Health and Human Services would suspend approximately $175 million dollars from the University of Pennsylvania based on its failure to follow the Executive Order. The University has been under investigation by OCR since February 6, 2025, in relation to a transgender student athlete’s participation on the University’s swimming team. Notably, that investigation appears to be ongoing as of the date of this alert. The Departments appear to have suspended funds to the University based on the ongoing investigation into noncompliance with the Executive Order, and not related to any finding of non-compliance.
This action further highlights the Trump administration’s willingness to follow through with threats to cut funding to educational institutions. In light of this most recent action, and other investigations pending across the country, we strongly encourage educational institutions to work closely with legal counsel when considering how to comply with obligations under federal and state laws, particularly where they may be in conflict.
