Week in Review – Major Announcements from the Department of Education, Challenges to Anti-DEI Actions, Board Member Reinstatement at the NLRB, and Continued Focus Shifts at the EEOC

We reported last week that the pace of executive orders coming from the new presidential administration had begun to slow. While, overall, the rate does still appear to be slowing, this week has been a notable one.

First, the Department of Education had a particularly busy week. Most significantly, although this has been widely anticipated for weeks now, the Trump administration seems to be on the verge of overhauling (and likely partially dismantling) the Department in the coming days. The Department further released statements regarding Title IX and Title VI.

Second, this week saw a flurry of activity related to President Trump’s anti-DEI initiatives and agency leadership changes. Legal challenges were filed against President Trump’s Anti-DEI Executive Orders, as well as the Department of Education’s recently released “Dear Colleague Letter.” And, on March 6, 2025, a DC Court ordered that formerly-removed National Labor Relations Board (“NLRB”) member, Gwynne Wilcox, be reinstated.

Keep reading for more highlights from this past week and our detailed analysis of those events.

The Week in Brief:

(1) The newly appointed U.S. Secretary of Education signaled an intent to overhaul, and potentially dismantle, the Department of Education.

(2) The Department of Education opened yet another Title IX investigation into a Washington school district related to gender identity and student athletics following a speedy investigation and finding that the Maine Department of Education was in violation of Title IX for similar allegations.

(3) The Office for Civil Rights (“OCR”) within the Department of Education released a FAQ regarding its recently issued “Dear Colleague Letter” on race considerations under Title VI.

(4) While portions of the presidential administration’s Anti-Diversity, Equity, and Inclusion Executive Actions remain blocked, there were additional legal actions filed challenging the Orders and the Department of Education’s Dear Colleague Letter (mentioned above).

(5) A federal court in Washington D.C. reinstated NLRB member, Gwynne Wilcox, who finding that she had been unlawfully removed from her position by President Trump.

(6) The Acting Chair of the U.S. Equal Employment Opportunity Commission (“EEOC”) affirmed the EEOC’s commitment to hold colleges and universities accountable for antisemitism amounting to hostile work environment harassment under Title VII.

Franczek Insights

1. Trump Administration Plans to Overhaul the U.S. Department of Education – By Jared Costanzo

U.S. Secretary of Education, Linda McMahon, issued a statement on March 3, 2025, “Our Department’s Final Mission,” in which she outlined the Trump administration’s intent to overhaul the Department of Education. We previously wrote about the uncertainty of the Department’s fate prior to McMahon’s confirmation as Secretary of Education. Following her confirmation, McMahon has emphasized President Trump’s goal of dismantling the Department and to transfer “educational oversight to the states.”

In the statement, McMahon noted that it will be the mission of the Department of Education “to send education back to the states and empower all parents to choose an excellent education for their children.” Secretary McMahon noted that, since President Trump’s inauguration, he has signed a slate of Executive Orders designed to combat “critical race theory, DEI, gender ideology, discrimination in admissions, promoting school choice for every child, and restoring patriotic education and civics.” Secretary McMahon also shared three “convictions” that she says will guide the Department: (1) parents are the primary decision makers in their children’s education; (2) taxpayer-funded education should refocus on meaningful learning in math, reading, science, and history – not “divisive DEI programs and gender ideology”; and (3) postsecondary education should be a path to a well-paying career aligned with workforce needs.

Aligned with these objectives, the Department of Education launched an “End DEI” portal, where parents, students, teachers, and the broader community can submit reports of discrimination based on race or sex in publicly-funded k-12 schools. Reports will be used by the Department of Education “as a guide to identify potential areas for investigation.” The portal is intended by the Trump administration to put “power back in the hands of parents.” It remains unclear, however, whether the Department has yet to launch an investigation into an educational institution based on a report filed through the End DEI portal.

There have also been recent reports that President Trump will be signing an executive order to direct Secretary McMahon and the federal government to dismantle the Department of Education. At the time of this alert, an executive order has not been signed or made public; however, that order could come as soon as this week. Notably, the Department was created by an act of Congress in 1979 and can therefore only be dissolved by an act of Congress. Given this, it is unlikely that the executive order will call for the complete dismantling of the Department. More likely, President Trump may instruct the Secretary of Education to identify the functions of the Department of Education that were not explicitly created by Congress and to discontinue those specific functions. To the extent the Department is eliminated (in whole or in part), the Department’s statutory duties would likely be reassigned to other Departments to oversee. The executive order is also expected to face legal challenges, which may delay its implementation.

We will continue to monitor President Trump’s executive orders and the impact of Secretary McMahon’s tenure as head of the Department of Education. We understand that there is significant uncertainty with President Trump’s overhaul of federal agencies, including the Department of Education; however, the Franczek team stands ready to assist and guide educational institutions in the face of this uncertainty.              

2. Updates on Title IX Investigations Related to Gender Identity and Student Athletics – By Hailey Golds

The Department of Education continues to move forward with actions to enforce President Trump’s “Keeping Men Out of Women’s Sports” Executive Order. We previously reported on the Department’s decisions to investigate the Maine Department of Education, the Minnesota State High School League, and California Interscholastic Federation for alleged Title IX violations related to gender identity, including allowing students to participate in athletics based on their gender identity and expressing support for transgender students. Since then, the administration has continued at a brisk pace, announcing an additional investigation in Washington and finding a Title IX violation in Maine.

New Investigation in Washington

On March 3, 2025 the Department announced another investigation into a school district in Washington based on a complaint that the district allows “male athletes” to compete in girls’ interscholastic events. The complaint was filed by the nonprofit group “Foundation Against Intolerance & Racism” on behalf of a 15-year-old student-athlete who allegedly experienced sex discrimination and retaliation for “speaking up against males in female sports.” Unlike the complaints described in the previous investigations, the Washington complaint specifically identifies a student that was “deprived” of an opportunity to participate in an athletic opportunity “on the basis of sex.” The complaint alleges that, “by allowing a male player on an opposing basketball team to compete against her team,” a female player was discriminated against because she was “forced” to withdraw from participation in the game.

The complaint also alleges that the “male player” was allowed to play pursuant to the Washington Interscholastic Athletic Association policy that allows athletes to play on the team that aligns with their “gender identity.” The complaint further alleges that the female student is now under investigation by the school district for violating the district’s policies against bullying and harassment by “misgendering” the “male player.” The Department’s announcement regarding its investigation into the complaint notes that the superintendent of the school district made public statements directing schools to “continue to follow state law” that allows “male athletes to compete against girls.” The Department further expressed its position that “[s]tate laws do not override federal antidiscrimination laws” and that the school district remains “subject to Title IX and its implementing regulations so long as they receive federal funds.”

Maine Found to Be in Violation of Title IX after Four Day Investigation

On February 21, 2025, the Department of Education announced an investigation into the Maine Department of Education, which has maintained a policy that allows transgender student athletes to participate in athletic teams that align with their gender identity. The investigation concluded just four days later, according to a notice of violation sent to Maine’s Governor and Attorney General on February 25, 2025.

The notice of violation states that the governing body for youth sports in the state of Maine, the Maine Principals’ Association (“MPA”), violated Title IX by implementing a policy “allowing transgender…athletes to compete on teams either according to their birth-assigned gender…or gender identity.” The notice cited reports of a “male athlete” participating in a “women’s high school track meet,” and a “male athlete” participating in a “women’s high school ski event” as evidence of the violation.

The notice further said that because the Maine Department of Education funds the MPA, the Maine Department of Education itself is in violation of Title IX, “by denying female student athletes in the State of Maine an equal opportunity to participate in, and obtain the benefits of participation, ‘in any interscholastic, intercollegiate, club or intramural athletics offered by the state by allowing male athletes to compete against female athletes in current and future athletic events.” The Maine Department of Education will be referred to the U.S. Department of Justice for further enforcement based on the findings.

The day after the notice was sent, on February 26, 2025, the U.S. Department of Education’s Acting Assistant Secretary for Civil Rights released an additional statement, commenting that the Governor of Maine’s “rejection of the antidiscrimination obligations that Maine voluntarily accepted when it agreed to receive federal taxpayer dollars is unlawful.” The statement also expressed that the Trump administration “fully” supports “Maine education leaders who stand up for girls and… comply with Title IX.”

We anticipate the Department of Education will continue to open investigations into school districts, institutions of higher education, and other education-related organizations on similar bases in the coming weeks. For more details regarding these enforcement actions and potential implications for schools in Illinois, please see our previous alert.

3. OCR Releases FAQ Regarding its Recently Issued “Dear Colleague Letter” – By Brittany Begley and Jennifer Smith

As we previously reported, the Department of Education’s Office for Civil Rights (“OCR”) issued a “Dear Colleague Letter” on Friday, February 14, in which it conveyed the new administration’s interpretation of nondiscrimination obligations for educational institutions that receive federal funding. Two weeks later, on February 28, OCR released guidance titled “Frequently Asked Questions About Racial Preferences and Stereotypes Under Title VI of the Civil Rights Act.” The Dear Colleague Letter and FAQ provide insight on how the administration currently states it will apply federal laws involving race considerations, most notably how it will apply the decision in the Supreme Court case, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (“SFFA”).

The FAQ confirms that the administration will apply certain principles from the SFFA decision broadly. The FAQ states that “[w]hile the facts of the case before the Supreme Court were specifically about racial preferences in university admissions, the Court applied broad reasoning to its decision, which has broad implications for race-based policies in education generally.” The broad implications extend to “never” using a student’s race as implying something about that person’s perspective, background, experiences, or socioeconomic status.

Additionally, the FAQ addresses Diversity, Equity, and Inclusion (“DEI”) programs. In the prior Dear Colleague Letter, DEI initiatives were characterized as “smuggling racial stereotypes and explicit race-consciousness into everyday training, programming, and discipline.” The FAQ is less categorical in denouncing DEI programs and instead indicates that “OCR’s assessment of school policies and programs depends on the facts and circumstances of each case.” The FAQ does affirm that, according to OCR, programs that do not exclude based on race and instead celebrate or recognize historical events or promote awareness, such as Black History Month and International Holocaust Remembrance Day, do not violate the law.

The FAQ suggests a collaborative enforcement process will be followed by the new administration. For education institutions deemed out of compliance with Title VI, an area of concern exacerbated by the Dear Colleague Letter’s threat of schools losing federal funding within two weeks of the issuance of the February 14 letter, OCR outlines its resolution agreement process allowing for voluntary corrective actions. The FAQ indicates that in the event a school fails to comply with civil rights laws, OCR will contact the school and work to negotiate a voluntary resolution agreement. The FAQ also provides a link to its updated Case Processing Manual which went into effect on February 19, 2025, and sets out the procedures that will now be used by OCR.

While the contents of the FAQ guidance do not have the force and effect of law, neither do they impose new legal requirements, it is insightful as to the new administration’s interpretation of the law. Franczek P.C. is here to assist your school in interpreting OCR guidance, addressing reports of discrimination, and providing training on schools’ obligations under Title VI. If you have any questions or need assistance regarding these matters, please contact a Franczek attorney.

4. Legal Challenges to the Presidential Administration’s Anti-Diversity, Equity, and Inclusion Actions – By John Anders

We are monitoring several challenges to 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”) and a related “Dear Colleague Letter” released by the Department of Education’s Office for Civil Rights.

Portions of DEI Executive Actions Still Blocked in NADOHE v. Trump

First, on March 3, 2025, the judge in the U.S. District Court for the District of Maryland who previously blocked portions of the above-referenced Executive Orders denied the government’s Motion to Stay the injunction pending appeal. In finding that all factors weighed against a stay and against narrowing the preliminary injunction only to plaintiffs and their members, the Court relied on its previous analysis that the specific Executive Order provisions at issue run afoul of constitutional protections prohibiting the government from making any law “abridging the freedom of speech” and “discrimination among viewpoints” without sufficient notice of “what is prohibited” with “explicit standards” to avoid “arbitrary and discriminatory enforcement” in violation of the First and Fifth Amendments.

Two New Lawsuits Challenging the Department of Education’s “Dear Colleague” Letter

Next, the American Federation of Teachers (“AFT”) and National Education Association (“NEA”) have both filed lawsuits against the Department of Education over the February 14 guidance letter from the Department of Education’s Office for Civil Rights (“Dear Colleague Letter”) prohibiting federally funded K-12 schools and colleges from considering race in their programs and policies.

The suit filed by the AFT on February 25, 2025, alleges that the agency’s guidance is vague, overly broad, “radically upends” current law, and forces colleges to either chill free speech or risk prosecution and the loss of funds. The lawsuit calls on the District of Maryland judge to declare the guidance unconstitutional and block its enforcement, claiming, “If this Letter is implemented, it will immediately and irreparably harm schools, educators, students, and communities around the country at all levels by requiring them to comply with guidance that violates the First Amendment, the Fifth Amendment due to its vagueness, and the Administrative Procedures Act in multiple ways.”

The AFT claims the Department’s letter appears to label “a wide variety of core instruction, activities, and programs” used by colleges, K-12 institutions, and pre-K institutions as illegal discrimination. The lawsuit alleges that the letter has put teachers in the difficult position of deciding “whether to comply with their licensure and professional requirements or jeopardize their institution’s federal funding.”

The AFT also alleges that the letter classifies Equity Assistance Centers — resource hubs established in 1964 to promote equitable education for all students — as violations of Title VI of the Civil Rights Act, despite being directly authorized by another part of that law. Similarly, the AFT claims, “If taken at face value, the vague language seems to even ban distributing materials previously provided by OCR or by other parts of the federal government that explicitly acknowledge racial groups or recognize targeted discrimination, because such materials are ‘race conscious.’”

The NEA’s lawsuit, filed on March 5, 2025, asks the court to declare the Dear Colleague letter meaningless, claiming “the letter dramatically disrupts plaintiffs’…ability to provide education to students in accordance with professional requirements and best practices,” and runs contrary to another law that federal employees are not mandated to “direct, review, or control, a state, local education agency. . . instructional content, curriculum, and related activities.”

5. DC Court Orders Reinstatement of NLRB Member Gwynne Wilcox – By Hailey Golds

On Thursday, March 6, 2025, Judge Beryl A. Howell of the District Court of the District of Columbia issued a decision reinstating National Labor Relations Board member Gwynne Wilcox. Judge Howell found that Wilcox’s removal was in violation of the National Labor Relations Act and therefore ordered that she remain a member of the NLRB until the expiration of her appointed term in September of 2028. This means that the NLRB again has a quorum and can resume issuing decisions and regulations.

As we previously reported, in the first weeks of his second term, President Trump took the unprecedented step of removing Wilcox, leaving the Board without a quorum to issue decisions or regulations. Wilcox filed suit challenging her removal.

In its decision, the court found that Humphrey’s Executor remains binding precedent, and that presidential removal power has never been viewed as unrestricted. Judge Howell noted that “the very structure of the Constitution was designed to ensure no one branch of government had absolute power, despite the perceived inefficiencies, inevitable delays, and seemingly anti-democratic consequences that may flow from the checks and balances foundational to our constitutional system of governance.”

The court issued a declaratory ruling stating that Wilcox was unlawfully terminated and further granted injunctive relief ordering that she be reinstated and allowed to carry out all of her duties as a Board member. The court found that reinstatement was the appropriate injunctive relief because of the irreparable harm caused by her unlawful removal and its “obviously disruptive effect” on the Board’s functioning. Without Wilcox on the Board, it was reduced to only two sitting members—one short of the three-member quorum required to operate. Without a quorum, while NLRB regional directors may continue to investigate initial unfair labor practice charges, and Administrative Law Judges may continue to conduct hearings and issue decisions, any appeal of those decisions would remain stalled while the Board only had two members. Because those decisions are only final if there is no appeal, any party that was dissatisfied with the outcome of a hearing could delay enforcement by appealing. Thus, the court reasoned that reinstating Wilcox would allow the Board “to carry out the important work in promoting labor stability, adjudicating labor disputes, and protecting workers’ rights, without inflicting any measurable harm on defendants.”

Judge Howell’s decision follows closely on the heels of another federal court ordering the reinstatement of the chair of the federal Merit Systems Protection Board, Cynthia Harris, who was also terminated by President Trump prior to the expiration of her appointed term. On Tuesday, March 4, the District Court for the District of Columbia rejected the administration’s argument that the president should be able to remove appointed independent agency board members at will and issued a permanent injunction preventing her from being removed without cause.

The administration has already filed notices of appeal in both cases, and it is anticipated that the decisions will ultimately end up before the U.S. Supreme Court for a final ruling addressing the president’s removal powers.

6. EEOC Signals Focus on Antisemitic Harassment at Colleges and Universities – By Hailey Golds

On Wednesday, March 5, 2025, the EEOC released a statement highlighting Acting Chair Andrea Lucas’s commitment to hold universities and colleges that have “created a hostile-work environment for their Jewish employees” accountable. Lucas focused on antisemitism at “leading universities,” which “are workplaces too,” and said that the EEOC would focus on discrimination under Title VII of the Civil Rights Act of 1964, which prohibits workplace harassment based on religion. Lucas asserted that, “[u]nder the guise of promoting free speech, many universities have actually become a haven for antisemitic conduct,” in violation of civil rights law. She also cited the Department of Justice’s March 5 announcement that it would be investigating the University of California for violations of Title VII “by allowing an Antisemitic hostile work environment to exist on its campuses.”

This is in line with an announcement on Friday, March 7, that the Department of Justice, Department of Health and Human Services, Department of Education, and the U.S. General Services Administration will be canceling grants and contracts with Columbia University worth $400 million due to what it called “the school’s continued inaction in the face of persistent harassment of Jewish students.”   This follows an announcement on Monday, March 3, that the Agencies would be reviewing Columbia University’s federal contracts and grants “in light of ongoing investigations for potential violations of Title VI of the Civil Rights Act.” The announcement stated that Jewish students “have been assaulted and harassed on elite university campuses” and “deprived of learning opportunities to which they are entitled” because of Columbia’s purported “ongoing inaction.” According to the statements, these cancelations are the first major action announced from the multi-agency Task Force to Combat Anti-Semitism created by President Trump’s Executive Order “Additional Measures to Combat Anti-Semitism.” Friday’s announcement also said that “additional cancelations are expected to follow.”