Week in Review – Department of Education threatens K-12 Title I funding, Department of Labor grant recipients get reprieve from DEI certification requirements, and upheaval in federal agency staffing and priorities continues
Many schools were closed over the past few weeks for Spring Break. And, for those of our clients that were able to take some time off with their families, we hope you had a relaxing and enjoyable reprieve. However, while work for some may have stopped or slowed, developments from the presidential administration certainly have not.
This past week, the Department of Education once again made the news by issuing a letter to all chief state school officers that threatened to revoke Title I funding to K-12 school districts that do not comply with anti-discrimination laws. Notably, the Department highlighted that DEI programs may be violative of such laws and lead to a revocation of funding.
Relatedly, the Department of Labor recently required all USDOL grant recipients to certify that they do not operate programs that violate Executive Orders prohibiting DEI initiatives. This past week, a federal court entered a nationwide temporary injunction prohibiting the DOL from carrying out that requirement, in part. However, portions of the DOL’s requirement remain in place and will be important for employers to understand.
We provide further insight regarding those developments, and others from the week, below. As always, we encourage you to reach out to your Franczek attorney should you have any questions or wish to discuss these developments further.
The Week in Brief:
(5) The Trump Administration Homed in on Student Privacy Laws in Continued Focus on Transgender Students;
- Federal Court Temporarily Enjoins USDOL from conditioning federal grants on compliance with President Trump’s Anti- DEI Executive Orders – by John Anders and Michael A. Warner, Jr.
On March 26, 2025, a federal district court in the Northern District of Illinois entered a temporary restraining order blocking the U.S. Department of Labor (USDOL) from requiring USDOL grant recipients to certify that they do not operate programs that violate Executive Orders prohibiting DEI initiatives. In Chicago Women in Trades v. Trump, a Chicago area trade association challenged the constitutionality of President Trump’s Anti-DEI Executive Orders (“Ending Radical and Wasteful Government DEI Programs and Preferencing” and “Ending Illegal Discrimination and Restoring Merit Based Opportunity”). The case, filed on February 26, 2025, alleges that, because of the “Termination Provisions” and “Certification Provision” of President Trump’s Anti-DEI Orders, multiple federal grant awards the organization previously received have been frozen. The suit alleges that the Termination Provisions and Certification Provision of the Orders violate the First and Fifth Amendments as well as the U.S. Constitution’s Spending Clause and Separation of Powers doctrine.
The U.S. District Judge granted a nationwide temporary injunction holding that the CWIT has shown that it is likely to succeed on the merits of its First Amendment claims involving the Certification Provision. The judge also granted a temporary injunction regarding the Termination Provision as it applies to CWIT. Specifically, the Court considered how the “Certification Provision reaches speech beyond the federally-funded program,” as “[e]very grant recipient is expected certify that it does not engage in any programs involving “illegal DEI” (not just federally funded programs) without knowing what programs fall under that umbrella.” The Court reasoned that the Certification Provision would likely lead grantees to choose to “simply stop speaking on anything remotely related to what the government might consider to promote DEI or equity,” rather than challenging the government in court or risking False Claims Act litigation for violating the provision. The Court concluded that a nationwide restraining order appropriately protects grantees who cannot afford the risks associated with “biting the hand that feeds them.”
The Court reached a different conclusion regarding the Termination Provisions of the anti-DEI orders, which require each federal agency to “terminate, to the maximum extent allowed by law, all ‘equity-related’ grants.” The Court’s Order more narrowly granted the motion with respect to the Termination Provisions to CWIT and its subcontractors. The judge held that CWIT could be provided complete relief without needing a nationwide injunction. Further, the Court reasoned that the risk that other affected grantees would not challenge enforcement of the Termination Provision was far less likely than that for the Certification Provision, as described above. Therefore, the Termination Provision remains enforceable against grantees other than CWIT and its subcontractors, but the Court notes that grantees impacted by the Termination Provision of the anti-DEI executive orders “have an ample incentive to challenge the termination so that [they] can retain funding.”
Since filing the lawsuit, the Chicago-based women’s trade group—reliant on federal funding for roughly forty percent of its annual budget—has lost a subcontract out of concern that working with CWIT would violate the above-referenced executive orders.
The Court’s opinion also addressed the administration’s vague requirement that organizations like CWIT acknowledge that they do not operate any DEI programs that “violate any applicable Federal antidiscrimination laws.” The order containing the Certification Provision does not define “DEI” or what might make any given “DEI” program violate federal antidiscrimination laws.
In summary, the Court’s block on the Termination Provision applies only to CWIT and any federal grantee through which CWIT holds a subcontract or is a subrecipient of federal funds, the Court’s block on the Certification Provision applies to all grantees or contractors nationwide, and the temporary restraining orders are limited to enjoining the Department of Labor. Therefore, this ruling impacts any employer that relies on USDOL grants with respect to the Certification Provision of the executive orders, but the Termination Provision remains enforceable to USDOL grantees other than CWIT.
- Wilcox Once Again Removed from NLRB and Other Federal Agency Personnel Updates – by Hailey Golds
We continue to monitor personnel changes at labor-related federal agencies, including the status of the legal challenge to NLRB Member Gwynne Wilcox’s removal and its impact on similar removal challenges. As of March 28, 2025, Wilcox has once again been removed from her position and the NLRB lacks a quorum to issue decisions and guidance.
DC Circuit Court Says Limiting President’s Removal Power is Unconstitutional.
As we previously reported, in the first weeks of his second term, President Trump took the unprecedented step of removing Wilcox, leaving the NLRB without a quorum to issue decisions or regulations. Wilcox filed suit challenging her removal, and on March 5, 2025, a district court granted summary judgment in favor of Wilcox, reinstating her to the NLRB and enjoining the NLRB Chair from removing her. The administration appealed the court’s order and sought an emergency stay of the order pending the outcome of the appeal.
On March 28, a three-judge panel of the D.C. Circuit Court of Appeals granted the administration’s motion, removing Wilcox and again leaving the NLRB without a quorum. In a 2-1 opinion, the court found that, because the NLRB exercises “substantial executive authority,” limiting the President’s ability to remove NLRB members would be an unconstitutional encroachment on the President’s Article II powers. The court reasoned that the Constitution vests the “entire executive Power” in the President, including the ability to remove executive officials. As such, a stay of the district court’s order would be appropriate where “reinstating her tips the scales in favor of political appointees that do not share the President’s policy objectives.”
This matter is far from resolved. On Tuesday, April 1, Wilcox filed a petition requesting a rehearing of the administration’s motion to stay en banc, before all D.C. Circuit judges in regular active service. The petition pointed to the divided nature of the 2-1 opinion, the paralysis of the NLRB, and the effect of the decision on terminations of other statutorily protected agency heads as the basis to compel a rare en banc rehearing. The petition also noted that there is a “growing list of related cases,” including challenges to the removal of members of the Federal Trade Commission and the Federal Labor Relations Authority, looking to the court’s decision as precedent. The petition for rehearing remains pending.
NLRB Issues Three Decisions
During the brief period that Wilcox was reinstated from March 6 to March 28, 2025, the NLRB issued three decisions, finding that Pacific Bell Telephone Company unlawfully refused to provide information in a timely manner about an employee’s disciplinary proceedings after they were accused of verbal assault; that Starbucks, through its Los Angeles South Central Avenue store manager, committed an unfair labor practice by threatening to close stores if employees supported unionization; and a default judgment finding that a strip club in Oregon committed an unfair labor practice when it fired a dancer after she engaged in protected activity and when it prohibited employees from making statements critical of the club or its employees around customers.
Updates to EEOC and NLRB Staffing
In other labor-related agency staffing news, President Trump nominated Crystal Carey, an attorney with the law firm Morgan Lewis & Bockius, to be the NLRB’s general counsel, replacing acting general counsel Michael Cowen. Carey has represented Apple, SpaceX, and Amazon in their challenges against the agency’s authority.
President Trump re-nominated Acting Chair Andrea Lucas to another five-year term at the EEOC. Lucas had previously been appointed during the President’s first term in 2020. In announcing the nomination, the EEOC highlighted progress made by the agency promoting the President’s agenda, including “combating DEI-related discrimination” at law firms, “developing resources to help workers and employers understand DEI-related discrimination,” holding universities accountable for antisemitism, “protecting workers from anti-American bias,” and “removing gender ideology” from the workplace.
- Department of Education Sends Guidance Letter to All Chief State School Officers Regarding Federal Grant Funding – by Rachel Domash and Amy Dickerson
On March 31, 2025, the U.S. Department of Education’s Office of Elementary and Secondary Education (OESE) sent a letter to all chief state school officers outlining how each state can utilize federal grant funding under the Elementary and Secondary Education Act of 1965 (ESEA) to provide student services to families, including elementary and secondary school educational choice initiatives.
OESE explained this letter is the first in a series of several guidance documents that will focus on expanding school choice and implementing President Trump’s Executive Order Expanding Educational Freedom and Opportunity for Families, which we previously reported on here. The March 31 letter focuses on two aspects of Title I, Part A of the ESEA where states and school districts have discretion and flexibility to use funds to support school choice initiatives.
The letter provides that states may reserve up to 3% of their Title I allocation to provide school districts funds for “direct student services” aimed at expanding educational choices for parents. Noting that Ohio is currently the only state implementing direct student services, OESE explains that this provision of the ESEA allows states to award funds to school districts to provide various educational options including advanced coursework and career/technical education, credit recovery and academic acceleration, support for postsecondary readiness (including AP/IB exam fees and dual enrollment), personalized learning and tutoring, and transportation for students transferring from lower-performing schools. If awarded funds by their state, school districts select providers of the direct student services (which can be the districts themselves, as well as higher education institutions or non-public schools) and must conduct outreach to parents on the availability of such services.
Additionally, the letter acknowledges that schools operating Title I schoolwide programs have flexibility to implement a range of activities that improve academic programming, such as tutoring and dual enrollment options, which parents could choose for their students.
In addition to this letter, OESE announced that it is preparing a frequently asked questions document to offer more guidance and encourages states to reach out to the Title I, Part A team with questions and for more information.
- DOE Requires State Education Officials Certify Title VI Compliance or Risk Loss of Federal Funding – by Rachel Domash and Amy Dickerson
The U.S. Department of Education (DOE) announced in a press release yesterday that all state commissioners overseeing K-12 state education agencies (SEAs) are required to certify their state’s compliance with Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color or national origin. The press release directs each SEA to collect the same certification responses from each of their local education agencies (LEAs) and to return a single certification to the DOE within 10 days of the press release. The certification requires SEAs and LEAs to acknowledge that failure to comply with Title VI as set forth in the certification – including with any unlawful diversity, equity and inclusion practices, or the responsibilities outlined in Students for Fair Admissions v. Harvard – may result in the loss of federal funding.
Acting Assistant Secretary for Civil Rights Craig Trainor stated “Federal financial assistance is a privilege, not a right. When state education commissioners accept federal funds, they agree to abide by federal antidiscrimination requirements. Unfortunately, we have seen too many schools flout or outright violate these obligations, including by using DEI programs to discriminate against one group of Americans to favor another based on identity characteristics in clear violation of Title VI.” The DOE states that the certification requirement is to ensure all recipients of federal funding under Title I are complying with federal civil rights laws.
Franczek attorneys are available to assist school districts in reviewing current practices for compliance with Title VI and with questions related to the certification. As the certification requirement is directed toward SEAs specifically, we will provide further updates on any related announcements or directives to school districts issued from the Illinois State Board of Education.
- Trump Administration Hones in on Student Privacy Laws in Continued Focus on Transgender Students – by Kristen Kinast
On March 28, 2025, the Secretary of Education and the United States Department of Education’s Student Privacy Policy Office (SPPO) issued letters regarding the enforcement of student privacy laws and the Trump administration’s concerns about parent access to information.
The Secretary of Education’s letter outlines the administration’s position that many state education agencies and school districts have enacted policies that evade or misapply the Family Educational Rights and Privacy Act (FERPA) and the Protection of Pupil Rights Amendment (PPRA) to thwart parental rights to be informed about their student. Specifically, Secretary Linda McMahon argues that schools are misapplying FERPA to insulate themselves from transparency and accountability to parents, specifically in relation to actions taken to support transgender students. McMahon’s letter states the Department of Education will proactively investigate schools it believes are not in compliance with FERPA and PPRA.
Similarly, the SPPO’s letter lists the Department of Education’s “priority concerns” with parent access to information. The priority concerns identified in the letter are:
- Parent right to inspect and review education
- In line with the Secretary of Education’s letter, the SPPO’s letter claims that many school districts have policies and practices in conflict with FERPA. The letter indicates that parents have the right to inspect and review all information directly related to a student and maintained by an educational agency or institution, including “gender plans.”
- Safety of students
- The SPPO claims it has received many inquiries from parents concerning the safety of their students due to schools withholding information and warns schools not to withhold information from parents. SPPO notifies schools that, while they cannot share the discipline of one student with the parents of another student, they should not withhold information and the school may disclose measures it might impose to protect student safety that affect both students. The SPPO is clear that schools should not withhold information from parents that identifies other students who have made death threats against their children.
- Annual notification of rights
- The letter states that many school districts are not properly notifying parents and eligible students of their rights under FERPA and reminds districts of the requirement to provide the notice by any means that are reasonably likely to inform parents of their rights.
- Military recruiters
- SPPO reiterates the information districts must make available to military recruiters, which is student names, addresses, electronic mailing addresses, and telephone listings.
- Assurance of compliance
- Perhaps most notably, the letter notifies state and local educational agencies that as part of the SPPO’s fulfillment of the Secretary of Education’s priority to take proactive action to enforce FERPA, SPPO is requesting that each state education agency submit no later than April 30, 2025, “documentation such as ‘reports, information on policies and procedures, annual notifications, training materials or other information necessary’ to provide assurance that the state education agencies and their respective school districts are complying with the provisions of FERPA and PPRA, specifically with regard to the priority concerns identified in the letter.
We will continue to report on this as it develops further.
- Final Warning Issued to Maine After OCR Finds Alleged Title IX Violations for Policies Allowing Transgender Students To Participate in Girls’ Sports – by Kristen Kinast
As we previously reported, in February, the Office for Civil Rights launched an investigation into the Maine Department of Education (MDOE) for possible Title IX violations. Specifically, OCR investigated whether the MDOE violated Title IX by permitting or requiring Maine school districts to: (1) allow transgender females to participate in female athletics, and (2) deny cisgender female students access to intimate facilities on the basis of sex, such as female-only locker rooms and bathrooms.
On March 19, 2025, OCR issued a finding that the MDOE’s policies and practices, along with Maine state law and administrative regulations, violate Title IX. At the same time, OCR also provided MDOE with a proposed resolution agreement. The proposed agreement would dismiss the investigation and findings against the MDOE if it ended its policy permitting transgender athletes to compete in girls’ sports. According to OCR, the MDOE did not agree.
On March 28, the Department of Health and Human Services referred the MDOE to the Justice Department over its alleged Title IX violations related to its policies allowing transgender girls to compete in girls’ high school sports.
On March 31, OCR issued its final warning to the MDOE for its ongoing refusal to comply with the Trump administration’s interpretation of Title IX. The impasse letter informed the MDOE that unless it reaches an agreement with OCR and executes an OCR-approved resolution agreement, a Letter of Impending Enforcement Action will be issued and the matter will be referred to the Department of Justice for enforcement.
We will continue to monitor OCR’s actions, as well as any related actions or litigation.
- Continued Federal Investigations to Colleges and Universities for Failure to Comply with Executive Orders – by Emily Tulloch
As of last week, the U.S. Department of Education has opened at least 85 investigations of school districts, colleges, universities, and state departments of education, threatening loss of federal funding for failure to align with Trump administration policy objectives. The most common focuses of the investigations are alleged violations of Executive Orders regarding DEI and gender identity, and antisemitism.
Of particular note over the past week, the Department of Education, in coordination with the Department of Health and Human Services and U.S. General Services Administration, announced an investigation into Harvard University for allegedly fostering antisemitism. The announcement stated the investigation is part of “ongoing efforts of the Joint Task Force to Combat Anti-Semitism,” which is now reviewing the $255.6 million in contracts between Harvard University and the federal government, as well as over $8.7 billion in multi-year grant commitments to the University.
The investigation into Harvard follows a similar review of Columbia University, which prompted a statement from Columbia outlining steps it would take in response to the Joint Task Force’s investigation and initial cancellation of approximately $400 million in grants and contracts to the University. The DOE, Department of HHS, and GSA announced that Columbia’s commitment to these actions was a “positive first step in the university maintaining a financial relationship with the United States government.”
Directives in the Trump administration’s Executive Orders, particularly those related to DEI, appear to be affecting the continuation of DEI initiatives at higher education institutions nationwide. This week, the University of Michigan announced it would be closing its Office of Diversity, Equity and Inclusion and Office for Health Equity and Inclusion, as well as discontinuing its DEI Strategic Plan, citing compliance with federal executive orders. Similar moves are being made at colleges and universities across the country, with examples such as the University of Southern California announcing it is no longer using the phrase “Diversity, Equity, and Inclusion” and the University of California banning campuses from requiring faculty applicants to submit “diversity statements” during the hiring process.
These actions reveal that higher education institutions are taking the federal administration’s threats to cut federal funding seriously. Rightfully so, as the administration’s enforcement actions highlight their willingness to follow through with these threats. In light of these actions, we strongly encourage educational institutions to work closely with legal counsel when evaluating how to comply with federal and state laws, particularly where those obligations may conflict.
- Pending Legal Challenges to Executive Order Seeking to Dismantle the Department of Education and OCR’s February 14 Dear Colleague Letter – by Brittany Begley
Lawsuits continue to emerge in response to President Trump’s Executive Order declaring his intent to close the United States Department of Education as well as guidance issued by the United States Department of Education’s Office for Civil Rights (OCR) through a Dear Colleague Letter interpreting nondiscrimination obligations and enforcement priorities.
Executive Order Directing Closure of the Department of Education
Just days after President Trump signed an Executive Order directing the closure of the Department of Education, addressed in our previous Week in Review, two lawsuits were filed in federal court. The first, brought by the American Federation of Teachers, the American Association of University Professors, and two public school districts in Massachusetts against Defendants Trump, Secretary of Education Linda McMahon, and the Department of Education, alleges that their actions prevent the Department from providing “critical and statutorily required support for students, parents, teachers, and schools.” The plaintiffs further argue that the executive order will harm educators, parents and students and unlawfully oversteps congressional authority. Filed on March 24, 2025, Somerville Public Schools v. Trump is currently pending in the U.S. District Court for the District of Massachusetts where an order has yet been issued.
The N.A.A.C.P., along with the National Education Association and other plaintiffs including school employees and students, filed the second lawsuit which similarly alleges that the federal government’s actions in dismantling the Department of Education exceed the congressional authority of the executive branch and violate the federal Administrative Procedure Act. The plaintiffs assert that shuttering the Department places millions of students at risk who depend on the Department’s support and further jeopardizes more than 400,000 educator jobs. NAACP v. USA, filed on March 25, 2025, calls for the court to immediately halt the government’s attempt to dismantle the Department and is currently pending in the District of Maryland. No order has been issued.
Dear Colleague Letter
As reported earlier this year, OCR issued a Dear Colleague Letter on February 14, 2025, setting out the new administration’s interpretation of nondiscrimination obligations for educational institutions that receive federal funding. On February 25, the American Federation of Teachers and its local division, as well as the American Sociological Association, filed suit against the Department of Education, then-acting Secretary of Education Denise Carter, and Acting Assistant Secretary for the Office of Civil Rights, Craig Trainor. In American Federation of Teachers v. U.S. Department of Education, the plaintiffs argue that the Dear Colleague Letter violates the First and Fifth Amendments of the United States Constitution as well as multiple provisions of the APA. The plaintiffs further allege that the Letter is “unlawfully vague, conflicts with law, and will chill speech and expression.” The lawsuit is pending in the District Court of Maryland, and no order has been issued.
On March 5, the National Education Association and its New Hampshire affiliate filed suit against the Department of Education, Linda McMahon as Secretary of the Department of Education, and Craig Trainor as Acting Assistant Secretary for Civil Rights. In National Education Association v. U.S. Department of Education, the teachers’ union contends that the Dear Colleague Letter is too vague for educators to interpret and violates laws that prohibit the federal government from interfering with curricula. Specifically, that the Letter “imposes vague and viewpoint discriminatory prohibitions on schools that upend and conflict with longstanding law, guidance, and professional practice” citing violations under the First and Fifth Amendment as well as the APA. The lawsuit requests the Court find the Education Department’s “End DEI” portal and the FAQ document to the “Dear Colleague Letter,” issued on February 28 and previously covered here, unlawful. The case is pending in the District Court of New Hampshire where no order has yet been issued.
We will continue to track these lawsuits and others that may be filed in response to Executive Orders issued by President Trump and the OCR Guidance.